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37 defendants âintentionally pried into Plaintiffsâ private and personal matters when they filmed Plaintiffs without their knowledge or consent.â519 In the absence of judicial precedent, it is difficult to predict whether and under what circumstances a court would rule that a transit agencyâs use of video surveillance would violate a personâs right to privacy at common law. A disclosure by a transit agency of images of an individual likely would have to be inten- tional. In some states, a violation of privacy must have been caused by âwillful or outrageousâ conduct.520 Thus far, the courts have not recognized a cause of action for a violation of privacy resulting from a disclosure of data collected on individuals when they are âon public streets.â521 In some states, there may be a good faith defense that also may be codified in some statutes.522 Finally, neither were there any cases against a transit agency located for this digest, nor did the transit agencies responding to the survey report any claims or cases, for an invasion of privacy because of an agencyâs public video surveillance. X. USE OF VIDEO SURVEILLANCE IN TORT LITIGATION AND ACCIDENT AND CRIMINAL INVESTIGATIONS A. Use of Video Surveillance in Tort Litigation There are various ways that video surveillance may be used in tort litigation by or against transit agencies. Of the transit agencies responding to the survey, fifty-one agencies (70.83%) have used video surveillance in tort claims brought by or against the agency. Eighteen agencies (25%) stated that they had not.523 CT Transit reported that it has used video surveillance âvery oftenâ in tort cases and that âvideo from every accident is retained and in many cases used to defend against claims that appear to exag- gerate the cause or extent of injuries.â524 The Greater the tort of intrusion requires âspecific intrusive action as opposed to disclosing private information.â510 In California, there must be proof of an âintrusion into a private place, conversation or matterâ¦in a manner highly offensive to a reasonable person.â511 In Watkins v. Cornell Companies, Inc.,512 a case in which the plaintiffs knew they were being filmed, the plaintiffs sued for intrusion upon seclusion. A federal court in Texas held, Intrusion on seclusion requires proof of (1) an intentional intrusion, physically or otherwise, upon anotherâs solitude, seclusion, or private affairs or concerns, which (2) would be highly offensive to a reasonable person.â¦ Liability does not turn on publication of any kind. The core of the tort of inva- sion of privacy is the offense of prying into the private domain of another, not the publicity that may result from such prying.513 Likewise, in Rhoades v. PennâHarrisâMadison School Corporation,514 a federal court in Indiana held that an intrusion claim requires physical contact or an invasion of a plaintiff âs physical space.515 To succeed on an intrusion seclusion claim, a plaintiff must prove that there was an intrusion, that the intrusion was intentional, that the plaintiff had a reasonable expectation of privacy in the matter intruded upon, and that the intrusion was âhighly offensive to a reasonable person.â516 Because the tort is based on the psychological distress that an intrusion caused, it is not necessary that a wrong- doer learn anything embarrassing or private about or disclose any information concerning the person who was harmed.517 In claims by employees for intrusion, an employee still may be unsuccessful if the employer shows that it âhad a legitimate busi- ness reason for the intrusion that outweighs the employeeâs privacy interest.â518 In Laba, supra, the court would not dismiss the plaintiffsâ claim for the defendantsâ intrusion upon seclusion, because the plaintiffs alleged that the 510 Dunbar v. Cox Health Alliance, LLC, 446 B.R. 306, 313â14, 2011 Bankr. LEXIS 812, *19 (E.D. Ark. 2011). 511 Grant v. United States, No. 2:11- CV - 00360, 2011 U.S. Dist. LEXIS 61833, at *1, *20 (E.D. Cal. 2011), adopted by, claim dismissed, 2011 U.S. Dist. LEXIS 78119, at *1 (E.D. Cal. 2011); see also id. at *23 (citing Cal. Civ. Code Â§ 47(b)). 512 No. 3: 11-CV-260, 2013 U.S. Dist. LEXIS 66376, at *1 (N.D. Tex. 2013), adopted by, summary judgment granted, Watkins v. Cornell Comps, No. 3:11-CV-260, 2013 U.S. Dist. LEXIS 65969, at *1 (N.D. Tex. May 8, 2013). 513 Id. at *21â22 (citations omitted) (internal quotation marks omitted) (emphasis supplied). 514 574 F. Supp. 2d 888 (N.D. Ind. 2008). 515 Id. at 908. 516 Fiore & Weinick, supra note 118, at 547. 517 Id. at 546 & n.202 (citing Restatement (Second) of Torts Â§ 652B cmt. a and b (1977)). 518 Id. at 547. 519 Laba, 2015 U.S. Dist. LEXIS 70758, at *16. 520 Dorothy J. Glancy, Privacy and Intelligent Transpor- tation Technology, 11 Santa clara coMPuter & hiGh tech. L.J. 151, 180 (1995). 521 Garry, Douma, & Simon, supra note 121, at 104 & n.33 (citing Kendra Rosenberg, Location Surveillance by GPS: Balancing an Employerâs Business Interest with Employee Privacy, 6 WaSh J. l. tech. & artS 143, 150â54 (2010)). 522 E.g., Iowa Code Â§ 22.10(3)(b)(2) (2017) does not per- mit an award of damages against an agency when the agency shows that it made reasonable efforts to prevent disclosure or âhad good reason to believe and in good faithâ that it was complying with the statute. 523 See Appendix C, transit agenciesâ responses to question 24(a). Three agencies (4.17%) did not respond to the question. 524 See Appendix C, CT Transitâs response to question 24(a).
38 from a light rail platform. The North Carolina Court of Appeals held that there was a rational basis for concluding that the officer was more likely than the jury to identify the defendant correctly as the indi- vidual shown in the surveillance footage.533 C. Effect of 23 U.S.C. Â§ 409 on the Admissibility of Video Surveillance In some cases, video surveillance data may be inadmissible because of the preclusive effect of 23 U.S.C. Â§ 409: Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous road- way conditions, or railway-highway crossings, pursuant to sections 130, 144, and 148 of this title [23 USCS Â§Â§ 130, 144, and 148] or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occur- rence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.534 In Boyd v. Amtrak,535 a commuter rail train struck and killed the plaintiff âs fifteen-year old daughter.536 The complaint alleged that the National Railroad Passenger Corporation (Amtrak), the Massachu- setts Bay Transportation Authority (MBTA), and an engineer were negligent; that Amtrak and MBTA committed statutory violations; and that Amtrak and the MBTA were guilty of gross negligence and willful, wanton, or reckless misconduct.537 The appeals court, which affirmed a trial courtâs dismissal of the action,538 ruled, inter alia, that 23 U.S.C. Â§ 409 precluded the admission into evidence of surveillance evidence showing that the defendants knew that âchildren were circumventing safety gates at grade crossingsâ¦.â539 The Supreme Judicial Court of Massachusetts agreed that under the circumstances Â§ 409 precluded the discovery of video surveillance and the admissi- bility of video surveillance at trial.540 However, the court reversed and remanded the case in part because Peoria Mass Transit District uses video records often in the investigation and documentation of slips, trips, falls, defective equipment, human resources complaints, and other matters.525 In Frazier v. SEPTA,526 the Southeastern Penn- sylvania Transportation Authority (SEPTA) conducted surveillance, including video surveillance, of the plaintiff after she brought a personal injury action against SEPTA. Frazierâs amended complaint included common law claims and a Â§ 1983 claim against SEPTA based on what the plaintiff alleged was âintrusive surveillanceâ by SEPTA.527 Because SEPTAâs agents performed the acts of surveillance entirely âoutdoors and in public,â a federal district court in Pennsylvania ruled that the plaintiff had no reasonable expectation of privacy.528 B. Use of Video Surveillance in Accident and Criminal Investigations Video surveillance may be used in accident and criminal investigations. Sixty-six transit agencies (91.67%) responding to the survey stated that their agencies use video surveillance in accident or crimi- nal investigations. Only four agencies (5.56%) stated that they had not.529 The Sacramento Regional Transit District reported that the District routinely uses video surveillance to determine the cause of accidents and to investigate crimes and allegations of employee misconduct. Moreover, the District stated that it averages a 40%-60% arrest rate of persons committing thefts on its transit system.530 In State v. Holley,531 a video surveillance camera located at a nearby convenience store captured images of the defendant and another individual running toward a bus stop. A video surveillance camera on the bus also captured their images. A Connecticut appellate court held that the trial court did not abuse its discretion by allowing the state to present the testimony of a witness who identified the defendant from the video images that were taken by the camera on the bus. In another criminal case, North Carolina v. Patterson,532 the state relied on surveillance video images from the interior of a light rail train and 525 See Appendix C, Greater Peoria Mass Transit Dis- trictâs response to question 24(a). 526 907 F. Supp. 116 (E.D. Pa. 1995). 527 Id. at 118. 528 Id. at 122. 529 See Appendix C, transit agenciesâ responses to question 24(b). Two agencies (2.78%) did not respond to the question. 530 See Appendix C, Sacramento Regional Transit Dis- trictâs response to question 24(b). 531 160 Conn. App. 578, 127 A.3d 221 (2015). 532 Slip Op., No COA15-1145 (N.C. Ct. App. Oct. 4, 2016). 533 Id. at 9. The court also ruled that there was other sufficient evidence identifying the defendant as the perpe- trator; thus, any error in admitting the video surveillance footage was not prejudicial. 534 23 U.S.C. Â§ 409 (2017). 535 446 Mass. 540, 845 N.E.2d 356 (2006). 536 Id. at 540â41, 845 N.E.2d at 359. 537 Id. at 541, 845 N.E.2d at 359. 538 Id. at 540â41, 845 N.E.2d at 359. 539 Id. at 541, 845 N.E.2d at 359. 540 Id. at 541, n.4, 550 n.12, 845 N.E.2d at 359 n.4; 365 n.12.