                                       SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

             Jaime Friedman v. Teodoro Martinez (A-37/81-18) (081093)

Argued January 21, 2020 -- Decided June 16, 2020

RABNER, C.J., writing for the Court.

       “Intrusion upon seclusion” is a tort that allows individuals whose privacy has been
invaded to seek recovery for their injuries. In this appeal, the Court considers the history
and nature of right to privacy claims as well as the showing needed to withstand a motion
for summary judgment.

       This case arises out of the discovery that a janitor at an office building had been
hiding video-recording devices in the women’s bathrooms and a locker room for a
number of months. Defendant Teodoro Martinez supervised a night cleaning crew at 400
Atrium Drive, a five-story office building estimated to have about fifteen women’s
bathrooms. Martinez concealed cameras in at least some of the women’s restrooms and
the women’s locker room. In November 2009, an employee of a corporate tenant of the
building discovered a camera in the ceiling of a women’s restroom on the third floor.

        A police investigation led to Martinez’s arrest. Detective Ordel Taylor
interviewed him on November 30, 2009. Martinez revealed that he had hidden three or
four cameras in the building. He initially estimated that he had been recording for five
months but later admitted it could have been more than a year. Martinez said he watched
some of the videos and erased them; he also said he downloaded some of the recordings
to his computer and erased some of that footage. The recording devices were portable,
and not much is known about when they were concealed, in which restrooms, or for how
long. About three hours of footage was recovered, which included graphic recordings of
women using a bathroom. Martinez was charged with one count of third-degree invasion
of privacy. At some point after his arrest, he fled the country.

       A group that eventually included about sixty women who had worked at the office
building filed an eleven-count complaint against multiple defendants, including Martinez;
his employer; related entities I&G Garden State, LLC, the owner of the office building,
and Jones Lang LaSalle, Inc., the building’s property manager (collectively, the owner-
managers); and Planned Security Services, Inc., a security company hired by a tenant,
along with the two guards who worked at the building (collectively, Planned defendants).


                                             1
        Two groups of plaintiffs emerged: the Friedman plaintiffs, a group of about thirty
women who could identify their images on the recovered video footage; and the Arendt
plaintiffs, the remaining thirty-five plaintiffs, who could not. Defendants moved for
partial summary judgment solely against the Arendt plaintiffs, arguing they could not
demonstrate an invasion of their privacy. Plaintiffs countered that proof they were
captured on videotape was not necessary to state a claim; that a jury could reasonably
infer they had been subjected to surveillance even if no video footage of them survived;
and that summary judgment would be premature because discovery was ongoing.

        In January 2014, the trial court granted summary judgment against the Arendt
plaintiffs and dismissed their claims. The court observed that “proof of a wrongful act
must be shown to defeat” defendants’ motion and that plaintiffs were entitled to all
favorable inferences. The court repeatedly agreed with plaintiffs that evidence of a
recording was not needed to state a claim but found there was no other way -- in this case
-- to show the women had been in a restroom when a camera was present.

        The court explained that this case was more complex than Soliman v. Kushner
Cos., Inc., 433 N.J. Super. 153 (App. Div. 2013), in which the defendants admitted they
had installed cameras in certain restrooms of an office building. The court noted that,
unlike in Soliman, plaintiffs in this case “can’t prove the camera was there when the
plaintiff was in” the bathroom. In response to plaintiffs’ argument that judgment would
be premature, the court underscored that “the case is three years old.” The court
lamented the lack of evidence during oral argument. Plaintiffs’ counsel said he could
submit affidavits, but no submissions along those lines were made, and the court, in its
decision, noted, “I don’t have any certifications from any of the” Arendt plaintiffs.

       The Friedman plaintiffs proceeded with their case against all defendants until
February 2016, when the trial court granted summary judgment in favor of Martinez’s
employer and partial summary judgment in favor of the owner-managers. Weeks later,
the Friedman plaintiffs settled with the remaining defendants.

       The Arendt plaintiffs filed a notice of appeal in July 2016 to challenge the trial
court’s 2014 summary judgment order. The owner-managers, in turn, filed a cross-
appeal to challenge the trial court’s partial denial of their motion for summary judgment.
In support of their cross-appeal, the owner-managers submitted materials in July 2016
that had not been produced before the 2014 dismissal of the Arendt plaintiffs, including
the summary of Detective Taylor’s interview of Martinez, discussed above.

        The Appellate Division reversed the grant of summary judgment. 454 N.J. Super.
87, 90, 94 (App. Div. 2018). The court held that plaintiffs can maintain a cause of action
for intrusion upon seclusion without proof “their images were actually captured” in a
recording. Ibid. Although the absence of direct evidence may affect a victim’s claim for
damages, the court noted, it is possible to prove an invasion of privacy through
                                            2
circumstantial evidence. Id. at 94-95. The Appellate Division observed that “[a]ny
plaintiff who could assert she used the same restroom around the same time should not
have been dismissed by way of summary judgment.” Id. at 95. In the Appellate
Division’s view, the trial court “failed to give plaintiffs the benefit of reasonable
inferences arising from other evidence” and “took a far more restrictive view of
plaintiffs’ proofs than” the summary judgment standard permits. Ibid. The court
therefore reversed and remanded for further proceedings. Id. at 95-96.

      In so ruling, the Appellate Division apparently read the trial court’s remarks in a
more restrictive way than the Court. Viewed in context, the trial judge concluded that
more evidence of some sort was required to prove the presence of a camera, not that a
recorded image was needed for the claim to proceed.

       The Appellate Division declined to reach the cross-appeal. Id. at 96-97. The
Court granted petitions for certification by the owner-managers, 236 N.J. 244 (2019), and
the Planned defendants, 238 N.J. 62 (2019).

HELD: An intrusion on privacy occurs when someone uses a private space where a
spying device has been concealed and “the intrusion would be highly offensive to a
reasonable person.” Restatement (Second) of Torts § 652B. To bring a claim, the victim
does not have to present direct evidence that she was secretly recorded. She can instead
establish a case of intrusion on seclusion based on reasonable inferences drawn from the
evidence. Here, however, there was not enough evidence in the summary judgment
record to demonstrate, either directly or inferentially, that the plaintiffs who were
dismissed used bathrooms with cameras in them during the relevant time period.

1. The Court traces the constitutional underpinnings and history of the common law right
to privacy. The Court has previously adopted section 652B of the Restatement (Second)
of Torts, which subjects to liability “[o]ne who intentionally intrudes, physically or
otherwise, upon the solitude or seclusion of another . . . if the intrusion would be highly
offensive to a reasonable person.” The Restatement does not suggest a plaintiff must
show someone saw or heard recorded information to be able to bring a claim. (pp. 20-23)

2. Neither Soliman nor any other reported New Jersey decision squarely addresses
whether simply placing a recording device in a private space is enough to establish an
invasion of privacy without proof of an actual recording. In other jurisdictions, courts
have held that no evidence of an actual viewing or recording is needed; some have noted
that the absence of direct proof of a recording or an actual viewing could affect a
damages award but not a party’s ability to state a claim. Other jurisdictions require more
than the presence of an eavesdropping device or a pathway to see into a private space. To
state a cause of action for invasion of privacy, those courts require some showing that a
defendant actually saw or heard private activities. (pp. 23-26)


                                             3
3. The Court agrees with the Appellate Division and the courts in many other
jurisdictions that have concluded a victim does not have to present evidence that she was
secretly recorded to bring a cause of action for intrusion on seclusion. The tort is tied to
the placement of a surveillance device in an area reasonably expected to be private. It is
the intrusion itself, and not an actual viewing, that is critical. And that intrusion takes
place when a victim uses a private space where a spying device has been concealed; it
does not depend on when -- or whether -- direct evidence of actual spying is found. The
absence of a recording can go to the issue of damages. (pp. 27-28)

4. To establish that an intrusion occurred, a victim may rely on circumstantial evidence,
and courts can draw reasonable inferences from the proofs presented. To recover in a
case like this, a victim would need to show that she used an area reasonably expected to
be private, like a restroom or locker room, while a recording device was concealed there.
A court could reasonably infer that someone who worked in the vicinity of a bathroom
around the same time a camera was hidden there met that standard. And a person who
visited a building once could satisfy the test with proof she used a bathroom at the same
time a camera was there. (pp. 28-29)

5. The Court reviews the summary judgment standard, which it then applies to the record
the parties presented to the trial court in 2014. The evidence falls short of demonstrating
facts within the Arendt plaintiffs’ control: that they used bathrooms with cameras during
the relevant time period. The 2014 record does not reveal where or when the Arendt
plaintiffs worked in the office building, which restrooms they used, or the particular
restrooms the Friedman plaintiffs used, which could have helped identify where cameras
had been placed. Nearly three years after the filing of the initial complaint, despite a
motion for summary judgment and extensive argument about the state of the record, the
Arendt plaintiffs had not offered proof from which one could reasonably infer that they
used a restroom while a camera was placed there. And the court could not reasonably
infer from the record that cameras had been placed in all fifteen bathrooms. It was
therefore not possible for the trial court to find that plaintiffs had satisfied their burden by
a preponderance of the evidence at the summary judgment stage. (pp. 29-34)

6. All parties are entitled to have their case decided on the basis of the record before the
trial court at the time summary judgment is decided. And without some showing of how
the outstanding discovery materials requested could help the Arendt plaintiffs state a
prima facie claim of intrusion, it was not premature to grant summary judgment after
three years of discovery. (pp. 34-35)

      The judgment of the Appellate Division is REVERSED and the trial court’s
order granting summary judgment is REINSTATED.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.

                                               4
      SUPREME COURT OF NEW JERSEY
          A-37/81 September Term 2018
                      081093


     Jaime Friedman; Karen Banks; Karen Barno;
   Pei-Ling Cuiffo; Melissa Current; Linda Cusick;
  Kathleen D’Angiollio; Dipti Desai; Sharon Hunt;
  Pamela Hurley; Monique Jacques; Julianne Kelly;
         Meredith Kobstad; Melanie Lehman;
Marie D. McMahon; Leyda J. Montalvo; Nan Nguyen;
    Sophia Pennant; Ana Rivera; Michele Sellnow;
   Randee Beth Soffer; Cindy Trabb; Nicole Beim;
 Mary Lou Burt; Patricia McEvoy; Colleen O’Reilly;
  Minwatti Ramsaroop; Tina Rogers; Pamela Cook,
 Executrix of the Estate of Fannie Woods, Deceased;
               and Diane Van Schoick,

                    Plaintiffs,

                       and

          Ellen Arendt; Benita C. Benjamin;
         Laura Dandorph; Jennifer DiMilia;
      Tina Galloway; Janice Goslin; Lori Gray;
Suniti Haridas; Sharonda M. Hogans; Eleanor Hunter;
   Maxine Kennedy; Stella Lee; Eleni C. Michael;
   Ann M. Oslin; Michele Pfeiffer; Alysia Sachau;
     Kalpana Shah; Angela Sims; Tracey Taylor;
 Christine Vigilotti; Ashley Watson; Donna Watson;
  Nettie White; Kelly Williams; Natasha Johnson;
 Diane Lanzafama; Grazyna LeBron; Carol Molinari;
         Nelita Ponte; and Kimberly Bryant,

              Plaintiffs-Respondents,

                        v.



                        1
                Teodoro Martinez,

                    Defendant,

                        and

       I&G Garden State, LLC, Jones Lang
       LaSalle, Inc., and LaSalle Investment
                 Management, Inc.,

              Defendants-Appellants,

                        and

           CRS Facility Services, LLC,

              Defendant/Third-Party
                    Plaintiff,

                         v.

         Ruben Sabillon, Jamar Sailor, and
          Planned Security Services, Inc.,

        Third-Party Defendants-Appellants,

                        and

         Planned Companies d/b/a Planned
     Building Services, Inc.; Planned Lifestyle
Services, Inc. and Clean, Inc.; Ingersoll-Rand, PLC;
    ING North America Insurance Corporation;
      Kratos d/b/a Kratos Defense & Security
  Solutions, Inc.; Kratos Public Safety & Security
  Solutions, Inc.; Kratos Technologies, LLC; and
        Geoffrey Consulting Services, LLC,

             Third-Party Defendants.


                         2
       On certification to the Superior Court,
   Appellate Division, whose opinion is reported at
        454 N.J. Super. 87 (App. Div. 2018).

       Argued                      Decided
   January 21, 2020              June 16, 2020

William J. Buckley argued the cause for appellants
I&G Garden State, LLC, Jones Lang LaSalle, Inc., and
LaSalle Investment Management, Inc. (Schenck, Price,
Smith & King, attorneys; Thomas J. Cotton, on the
briefs).

Jeffrey S. Mandel argued the cause for appellants
Ruben Sabillon, Jamar Sailor, and Planned Security
Services, Inc. (Law Offices of Jeffrey S. Mandel,
attorneys; Jeffrey S. Mandel, on the brief).

Franklin P. Solomon argued the cause for respondents
Ellen Arendt, Benita C. Benjamin, Laura Dandorph,
Jennifer DiMilia, Tina Galloway, Janice Goslin, Lori
Gray, Suniti Haridas, Sharonda M. Hogans, Eleanor
Hunter, Maxine Kennedy, Stella Lee, Eleni C.
Michael, Ann M. Oslin, Michele Pfeiffer, Alysia
Sachau, Kalpana Shah, Angela Sims, Tracey Taylor,
Christine Vigilotti, Ashley Watson, Donna Watson,
Nettie White, Kelly Williams, Natasha Johnson, Diane
Lanzafama, Grazyna LeBron, Carol Molinari, Nelita
Ponte and Kimberly Bryant (Solomon Law Firm,
Locks Law Firm, and Hill Wallack, attorneys;
Franklin P. Solomon, Michael A. Galpern, and
Suzanne M. Marasco, of counsel, and Franklin P.
Solomon and Marissa K. Vila, on the brief).

CJ Griffin argued the cause for amicus curiae
American Civil Liberties Union of New Jersey
(Pashman Stein Walder Hayden and American Civil
Liberties Union of New Jersey Foundation, attorneys;
CJ Griffin and Jeanne LoCicero, of counsel and on the
brief, and Robyn K. Lym, on the brief).
                          3
        CHIEF JUSTICE RABNER delivered the opinion of the Court.


      “Intrusion upon seclusion” is a tort that allows individuals whose

privacy has been invaded to seek recovery for their injuries. In New Jersey,

the tort provides a cause of action against the intentional intrusion, “physical[]

or otherwise, upon the solitude or seclusion of another . . . if the intrusion

would be highly offensive to a reasonable person.” Restatement (Second) of

Torts § 652B (Am. Law Inst. 1977). In this appeal, we consider the history

and nature of right to privacy claims as well as the showing needed to

withstand a motion for summary judgment.

      This case arises out of the discovery, in November 2009, that a janitor at

an office building had been hiding video-recording devices in the women’s

bathrooms and a locker room for a number of months. The devices were

portable, and not much is known about when they were concealed, in which

restrooms, or for how long. About three hours of footage was recovered,

which included graphic recordings of women using a bathroom, and there is

evidence that more footage was recorded and deleted.

      A group of women who worked in the building filed a lawsuit against

the man who made the recordings and others. The women alleged, in part, that

the installation of hidden cameras in private places like bathrooms and a locker


                                         4
room intruded upon their seclusion. Roughly half of the sixty plaintiffs

identified themselves on the recovered footage. Defendants argued that the

women who did not identify themselves on the footage did not show that they

had suffered an invasion of privacy and moved for summary judgment against

those plaintiffs.

         In 2014, the trial court granted the motion and dismissed those plaintiffs

from the case. The court held that, in general, an actual recording is not

necessary to demonstrate intrusion. But the court found there was no evidence

the dismissed plaintiffs had used a restroom while a camera was concealed

there.

         The Appellate Division reversed the trial court’s judgment. The court

held that a claim of intrusion upon seclusion can be established through

circumstantial evidence and remanded the case to the trial court to allow the

continued development of the record with that in mind.

         We find that an intrusion on privacy occurs when someone uses a private

space where a spying device has been concealed and “the intrusion would be

highly offensive to a reasonable person.” Restatement (Second) of Torts

§ 652B. To bring a claim, the victim does not have to present direct evidence

that she was secretly recorded. She can instead establish a case of intrusion on

seclusion based on reasonable inferences drawn from the evidence.

                                          5
      Here, however, there was not enough evidence in the summary judgment

record to demonstrate, either directly or inferentially, that the plaintiffs who

were dismissed used bathrooms with cameras in them during the relevant time

period. We therefore find that summary judgment was properly granted, and

we reverse the judgment of the Appellate Division.

                                        I.

                                        A.

      We glean the following facts largely from the record that existed at the

time summary judgment was granted in 2014.

      Defendant Teodoro Martinez supervised a night cleaning crew at 400

Atrium Drive, a five-story office building in Somerset (Franklin Township).

He also cleaned restrooms during the day shift. Counsel for the owner and

managers of the building estimated that there are about fifteen women’s

bathrooms in it.

      Martinez worked for CRS Facilities Services, LLC (CRS), which had a

contract to provide janitorial services at 400 Atrium Drive. As the night

supervisor, Martinez had keys and access to all parts of the building. He

concealed cameras in at least some of the women’s restrooms and the women’s

locker room.




                                         6
      ING Institutional Planning Services, Inc. (ING), and other companies

rented office space in the building. On November 25, 2009, one of ING’s

employees discovered a camera in the ceiling of a women’s restroom on the

third floor.

      A police investigation led to Martinez’s arrest. Detective Ordel Taylor

interviewed Martinez on November 30, 2009, and Martinez admitted that he

had placed the camera in the restroom. 1 He also revealed that he had hidden

three or four cameras in the building and that the recordings from those

cameras ranged from two to fifty minutes long. Martinez could not recall

when he first installed the cameras. He initially estimated that he had been

recording for five months but later admitted it could have been more than a

year. Martinez said he watched some of the videos and erased them; he also

said he downloaded some of the recordings to his computer and erased some of

that footage.

      Martinez consented to a search of his home. From the office building

and his home, the police recovered cameras, flash drives, and computer and

electronic equipment that yielded about three hours of footage of women in a

bathroom or in the locker room near the building’s first-floor gym.


1
  A summary of the interview was presented to the Court in connection with
the cross-appeal the building’s owner and managers filed, which we discuss
later.
                                       7
      A grand jury in Somerset County returned an indictment against

Martinez that charged him with one count of third-degree invasion of privacy,

in violation of N.J.S.A. 2C:14-9(b). At some point after his arrest, Martinez

fled the country.

      In a deposition taken in April 2014 -- after the summary judgment ruling

now on appeal -- Detective Taylor estimated that he had identified about

fifteen women on the video footage with help from the human resources

department of ING. He testified that he did not identify all of the women

depicted and did not approach other tenants to enlist their help and try to

identify other victims.

                                       B.

      On January 25, 2011, a group that eventually included about sixty

women who had worked at the office building filed a complaint against

multiple defendants, including Martinez; CRS; and related entities I&G

Garden State, LLC, the owner of 400 Atrium Drive, and Jones Lang LaSalle,

Inc., the building’s property manager (collectively, the owner-managers). By

the time the sixth amended complaint was filed, plaintiffs had added several

defendants including Planned Security Services, Inc., a security company ING

hired for its space, along with the two security guards who worked at 400




                                        8
Atrium Drive (collectively, Planned defendants). The Planned defendants

were also named as third-party defendants.

      The eleven-count complaint alleged invasion of privacy contrary to

N.J.S.A. 2A:58D-1, tortious invasion of privacy, and intentional and negligent

infliction of emotional distress by Martinez; employer liability pursuant to

section 317 of the Restatement (Second) of Torts, negligent hiring and

retention, and negligent supervision against CRS; negligence/premises liability

against the owner-managers; negligence/inadequate security by companies

allegedly employed by the owner-managers; negligence in the form of a breach

of the “duty to exercise reasonable care for the safety, security and privacy of

plaintiffs by allowing and failing to detect installation of devices in the

women’s restroom” against the owner-managers; and respondeat superior

against the owner-managers for CRS’s negligence. Later in the year, the trial

court consolidated the matter with cases brought by three individual plaintiffs.

The trial court also appointed a special master to oversee discovery.

      CRS filed a motion for summary judgment on September 18, 2013. The

owner-managers cross-moved for partial summary judgment one month later,

as did the Planned defendants. By the time the court decided the motion, two

groups of plaintiffs had emerged: the Friedman plaintiffs, a group of about




                                         9
thirty women who could identify their images on the recovered video footage;

and the Arendt plaintiffs, the remaining thirty-five plaintiffs, who could not.

      Defendants moved for partial summary judgment. They sought

summary judgment solely against the Arendt plaintiffs -- the women who did

not identify themselves on the recovered footage -- and argued that those

plaintiffs could not demonstrate an invasion of their privacy. (The Friedman

plaintiffs are not part of this appeal.)

      Among other arguments, plaintiffs countered that proof they were

actually captured on videotape was not necessary to state a claim; that a jury

could reasonably infer the Arendt plaintiffs had been subjected to surveillance

even if no video footage of them survived; and that summary judgment would

be premature. In support of the last point, plaintiffs stressed that discovery

was ongoing nearly three years after the complaint had been filed, and that

further discovery, including from law enforcement, could provide additional

evidence in support of their claims.

      On January 24, 2014, the trial court granted summary judgment against

the Arendt plaintiffs and dismissed their claims. The court first noted that,

although the case was three years old and they “had ample opportunity over

the years to find or look at the videos,” the Arendt plaintiffs had not identified




                                           10
themselves in the recovered footage. The court thus formally found that the

Arendt plaintiffs were not on the recordings.

      The court observed that “proof of a wrongful act must be shown to

defeat” defendants’ motion and that plaintiffs were entitled to all favorable

inferences. The court repeatedly agreed with plaintiffs that evidence of a

recording was not needed to state a claim but found there was no other way --

in this case -- to show the women had been in a restroom when a camera was

present:

            Even if they weren’t on the camera, if they would show
            that the camera was there on March 17th and they were
            in the bathroom on March 17th they at least have
            something they can bring to the jury.

            ****

            [U]nless you know the camera’s there, they don’t have
            a case. You got to establish a wrongful act. The
            wrongful act has got to be more than the mere
            placement of [a] camera. You got to show the camera
            was in there when you were in there. And you don’t
            have to be videotaped. The invasion of privacy took
            place when the camera was there. But they can’t prove
            the camera was there.

            ****

            [T]here is no evidentiary support to be cited for the
            unrecorded plaintiffs’ claims. There’s just nothing in
            the record I can hang my hat on, even giving all the
            favorable inferences on a summary judgment motion.
            All that is known is that Mr. Martinez’s recording
            device was placed in the bathroom on days . . . that had
                                       11
            captured each of the women who actually appear on the
            tape. That’s the only way they can establish that the --
            the camera was in those bathrooms.

      At times, the court’s discussion of the need for video evidence was not

crisp, for example, when it stated that “the only way they can establish that the

camera was in the building is by their establishing that they’re on the video.

Otherwise you have to assume the camera’s not there,” or when the court

suggested it could “only establish that the recording device was there at the

times that the individual identifies themselves in the tape. It’s the only way

they’re going to prove the tape was there, they have to look at it, otherwise

there’s no acknowledgement that the video cameras were there.”

      Elsewhere, though, the court made clear that it did not view recordings

as an absolute requirement but felt constrained to focus on the video footage

absent other forms of evidence. Indeed, the court stated that it “would agree”

with plaintiffs that no footage was necessary “if [in] fact they could show that

the camera was there” and explicitly “f[ou]nd that you don’t have to have a

recorded image, but there’s a little more to it than that.”

      The court explained that this case was more complex than Soliman v.

Kushner Cos., Inc., 433 N.J. Super. 153 (App. Div. 2013), in which the

defendants admitted they had installed cameras in certain restrooms of an

office building. The Soliman defendants claimed they did so to deter

                                        12
vandalism and that the cameras were active for three days before they were

discovered. Id. at 159-60, 163, 171. A plaintiff submitted a certification that

she used one of the restrooms several times a day before the discovery. Id. at

164.

       The trial court here stressed the defendants’ admissions in Soliman and

contrasted them with the record in this case. The court noted that, unlike in

Soliman, plaintiffs in this case “can’t prove the camera was there when the

plaintiff was in” the bathroom. Without Martinez’s testimony, the trial court

added, the video recordings in which the Arendt plaintiffs did not appear are

“[t]he only evidence available . . . as to the placement of the device and the

time frame.” The court found that to permit the case to proceed on that basis

would “encourag[e] speculation, at best.”

       The court concluded that plaintiffs had raised “no genuine issue of

material facts in dispute” because “the women who were not on the tapes

therefore had no factual support for their claims.” In response to plaintiffs’

argument that summary judgment would be premature, the court underscored

that “the case is three years old. The day of reckoning has come. If in fact

they come up with new evidence, well they can always make another

application to the [c]ourt.”




                                       13
      The court lamented the lack of evidence during oral argument on the

summary judgment motion: “there’s no affidavits or certifications from

anybody.” At one point, plaintiffs’ counsel said he could submit affidavits

from plaintiffs -- “Now, Judge, if you would like us to develop a factual record

and get affidavits from every one of these 35 women that, yes, I used the

bathroom on the third floor or -- and/or the fifth floor every day that I was at

work . . .” -- but counsel added, “I think it’s . . . kind of a pointless exercise.”

No submissions along those lines were made, and the court, in its decision,

noted, “I don’t have any certifications from any of the” Arendt plaintiffs.

      The trial court denied the Arendt plaintiffs’ motion for reconsideration

but reinstated the claims of three plaintiffs who identified themselves on the

recovered footage. The trial court explained that “[i]t has never been

established when the cameras were there or for how long, and there has been

no admission as to where they were located.”

      The trial court also rejected the Arendt plaintiffs’ renewed argument that

summary judgment was premature because discovery was still outstanding.

The court noted the Arendt plaintiffs had made “no submission as to how any

outstanding discovery would help [them] establish the timeframe in which

these cameras were in place.”




                                         14
      The Friedman plaintiffs proceeded with their case against all defendants

until February 10, 2016, when the trial court granted summary judgment in

favor of CRS and partial summary judgment in favor of the owner-managers.2

Weeks later, during jury selection, the Friedman plaintiffs settled with the

remaining defendants.

      With all of the issues in the case resolved at the trial court level, the

Arendt plaintiffs filed a notice of appeal in July 2016. They challenged the

trial court’s summary judgment order from January 2014, when their claims

were dismissed. The owner-managers, in turn, filed a cross-appeal to

challenge the trial court’s partial denial of their motion for summary judgment.

In support of their cross-appeal, the owner-managers submitted materials in

July 2016 that had not been produced before the 2014 dismissal of the Arendt

plaintiffs, including, as noted earlier, the summary of Detective Taylor’s

interview with Martinez and the transcript of Detective Taylor’s deposition.

                                        C.

      The Appellate Division reversed the trial court’s grant of summary

judgment. Friedman v. Martinez, 454 N.J. Super. 87, 90, 94 (App. Div. 2018).


2
  Specifically, the court (1) granted summary judgment in favor of the owner-
managers as to the Friedman plaintiffs’ vicarious liability and punitive
damages claims; (2) denied the owner-managers’ motion for summary
judgment as to negligence and premises liability; and (3) denied the Planned
defendants’ motion for summary judgment as to negligence.
                                        15
The court held that plaintiffs can maintain a cause of action for intrusion upon

seclusion without proof “their images were actually captured” in a recording.

Ibid. Although the absence of direct evidence may affect a victim’s claim for

damages, the court noted, it is possible to prove an invasion of privacy through

circumstantial evidence. Id. at 94-95.

      Here, the Appellate Division observed that “a reasonable inference must

arise in favor of . . . plaintiffs who were unable to” identify themselves from a

recorded image if a plaintiff

            could assert her use of the facilities during the same
            general time frame other plaintiffs were spied upon.
            For example, the record supports an assumption for
            summary judgment purposes that the janitor’s illicit
            actions occurred between six months to a year before
            his conduct was discovered. [3] Any plaintiff who could
            assert she used the same restroom around the same time
            should not have been dismissed by way of summary
            judgment.     Moreover, such a plaintiff need not
            specifically delineate the dates on which she used the
            infringed facility. It would suffice if a plaintiff could
            demonstrate she worked in the building in an area close
            enough to allow a factfinder to assume her occasional
            use of the surveilled restroom.

            [Id. at 95.]




3
  For this estimate, the Appellate Division relied on Detective Taylor’s
deposition. See id. at 91 n.1. The owner-managers contend it was error to rely
on the deposition because it was taken after partial summary judgment was
granted in 2014.
                                       16
In the Appellate Division’s view, the trial court “failed to give plaintiffs the

benefit of reasonable inferences arising from other evidence” and “took a far

more restrictive view of plaintiffs’ proofs than” the summary judgment

standard permits. Ibid. The court therefore reversed and remanded for further

proceedings. Id. at 95-96.

      In so ruling, the Appellate Division apparently read the trial court’s

remarks in a more restrictive way than we do. To be sure, some of the judge’s

oral comments suggested plaintiffs could not establish a claim without video

evidence. Viewed in context, however, the trial judge concluded that more

evidence of some sort was required to prove the presence of a camera, not that

a recorded image was needed for the claim to proceed.

      The Appellate Division declined to reach the owner-managers’ cross-

appeal. Id. at 96-97.

      We granted petitions for certification by the owner-managers, 236 N.J.

244 (2019), and the Planned defendants, 238 N.J. 62 (2019). We also granted

the American Civil Liberties Union of New Jersey (ACLU) leave to appear as

amicus curiae.

      To be clear, the only parties to this appeal are the Arendt plaintiffs , the

owner-managers, and the Planned defendants. Although the owner-managers




                                        17
cross-appealed from a 2016 decision that involved the Friedman plaintiffs,

those plaintiffs are not part of this case. 4

                                          II.

      The owner-managers argue that the Appellate Division “upended the

levels of proof that plaintiffs must satisfy to bring tort claims arising from

alleged privacy invasions.” They contend the court’s ruling allows plaintiffs

to pursue such claims “without any evidence that they suffered a privacy

invasion.” The owner-managers maintain the Appellate Division allowed

plaintiffs to rely on inferences to speculate they might have been harmed. The

“mere possibility of privacy invasion,” the owner-managers submit, is

insufficient as a matter of law.

      The owner-managers also claim the Appellate Division improperly relied

on materials that were not part of the 2014 summary judgment record. Finally,

they contend the Appellate Division should have addressed their cross-appeal.

The Planned defendants joined in those arguments.

      The Arendt plaintiffs counter that defendants “seek to create a new and

more stringent standard of proof” that would require all plaintiffs to prove




4
  Proceedings related to the Arendt plaintiffs continued in the trial court after
the Appellate Division remanded the matter. Those proceedings have no
bearing here for reasons we discuss later.
                                       18
invasion-of-privacy claims solely through direct evidence. The Arendt

plaintiffs argue the Appellate Division rightly rejected that proposition.

      Plaintiffs insist there was sufficient evidence for the case to proceed

without proof that their images had been identified on a video recording. They

contend that summary judgment was not appropriate because video

surveillance occurred on numerous days, through several seasons of the year,

while women who worked at the building “could be reasonably expected to use

the restrooms at least once a day.” Plaintiffs add that some video devices and

recordings were not recovered. Plaintiffs also stress that the placement of the

device itself, not its use, established an intentional intrusion on seclusion.

      The ACLU argues that individuals have a constitutional privacy interest

that is enforced through the common law; that the mere placement of a

surreptitious camera in a bathroom violates that privacy interest; and that

plaintiffs should not be required to provide direct evidence that they were

recorded to survive summary judgment.

                                        III.

      We first consider the right to privacy and then analyze what evidence is

needed to establish that it has been violated.




                                        19
                                        A.

      Article I, Paragraph 1 of the State Constitution declares that “[a]ll

persons are by nature free and independent, and have certain natural and

unalienable rights, among which are . . . enjoying and defending life and

liberty, . . . and . . . pursuing and obtaining safety and happiness.” N.J. Const.

art. I, ¶ 1. That declaration “encompasses the right of privacy.” Doe v. Poritz,

142 N.J. 1, 89 (1995).

      In this appeal, plaintiffs’ claims are grounded in the common law right

to privacy. That right can be traced to a seminal law review article published

in 1890 and written by Samuel Warren and Louis Brandeis, the future

Associate Justice of the Supreme Court. They argued that the time had come

for the common law to develop further and “secur[e] . . . the right ‘to be let

alone.’” Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4

Harvard L. Rev. 193, 195 (1890) (quoting Cooley on Torts 29 (2d ed. 1988)).

As they wrote more than a century ago, “[r]ecent inventions and business

methods” including “[i]nstantaneous photographs,” the “newspaper

enterprise,” and “numerous mechanical devices” begged “the question whether

our law will recognize and protect the right to privacy.” Id. at 195-96.

      By 1960, most courts had recognized a cause of action for invasion of

privacy. William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 386 (1960). The

                                        20
noted legal scholar Dean William Prosser outlined four separate torts that

comprised the right to privacy: (1) “[i]ntrusion upon the plaintiff’s seclusion

or solitude, or into his private affairs”; (2) “[p]ublic disclosure of embarrassing

private facts”; (3) “[p]ublicity which places the plaintiff in a false light in the

public eye”; and (4) “[a]ppropriation, for the defendant’s advantage, of the

plaintiff’s name or likeness.” Id. at 389. Examples of the first category

included “intruding into [a] home,” “an illegal search,” “eavesdropping upon

private conversations by means of wire tapping and microphones,” “peering

into the windows of a home,” and “unauthorized prying into” private effects or

information. Id. at 389-90.

      Dean Prosser later served as the chief reporter for the Restatement

(Second) of Torts, which incorporated the tort of intrusion upon seclusion at

section 652B. Eli A. Meltz, Note, No Harm, No Foul? “Attempted” Invasion

of Privacy and the Tort of Intrusion Upon Seclusion, 83 Fordham L. Rev.

3431, 3436 (2015).

      In Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 94-95 (1992),

and Stengart v. Loving Care Agency, Inc., 201 N.J. 300, 316 (2010), this Court

adopted section 652B, which provides that

             [o]ne who intentionally intrudes, physically or
             otherwise, upon the solitude or seclusion of another or
             his private affairs or concerns, is subject to liability to

                                         21
             the other for invasion of his privacy, if the intrusion
             would be highly offensive to a reasonable person.

             [Restatement (Second) of Torts § 652B.]

      Comment (b) to section 652B helps explain the contours of the tort and

is particularly relevant here:

             The invasion may be by physical intrusion into a place
             in which the plaintiff has secluded himself, as when the
             defendant forces his way into the plaintiff’s room in a
             hotel or insists over the plaintiff’s objection in entering
             his home. It may also be by the use of the defendant’s
             senses, with or without mechanical aids, to oversee or
             overhear the plaintiff’s private affairs, as by looking
             into his upstairs windows with binoculars or tapping his
             telephone wires. It may be by some other form of
             investigation or examination into his private concerns,
             as by opening his private and personal mail, searching
             his safe or his wallet, examining his private bank
             account, or compelling him by a forged court order to
             permit an inspection of his personal documents. The
             intrusion itself makes the defendant subject to liability,
             even though there is no publication or other use of any
             kind of the photograph or information outlined.

             [Id. § 652B cmt. b.]

As the comment makes clear, a person’s privacy can be invaded without a

camera (a “mechanical aid”), and publication or use of an image are not

necessary components of the tort. Ibid. Neither the Restatement nor the

comment require a recording for an invasion of privacy to occur. See, e.g., id.

§ 652B cmt. b, illus. 3. In other words, the Restatement does not suggest a


                                         22
plaintiff must show that someone saw or heard recorded information to be able

to bring a claim for intrusion on seclusion.

                                       B.

      Before this case, no reported decision in New Jersey had squarely

addressed whether simply placing a recording device in a private space was

enough to establish an invasion of privacy without proof of an actual

recording. The Arendt plaintiffs rely on Soliman and Villanova v. Innovative

Investigations, Inc., 420 N.J. Super. 353 (App. Div. 2011), which involved

different circumstances.

      In Soliman, the defendants admitted that concealed cameras monitored

certain bathrooms for three days, and a plaintiff certified she used the

bathroom several times a day, see 433 N.J. Super. at 159-60, 164 -- in contrast

to the uncertain timing and placement of the cameras in this case. The parties

disputed which part of the bathroom the cameras observed. Id. at 171. The

Soliman court properly concluded the plaintiffs could survive a motion for

summary judgment although it was unclear precisely what the cameras viewed.

Id. at 170-72.

      Villanova found no invasion of privacy when a spouse placed a GPS

device on a family car because there was no evidence the device tracked her




                                       23
husband to a private or secluded area. 420 N.J. Super. at 356, 361. Thus,

neither case directly answers the question raised in this appeal.

      Courts in other jurisdictions have held that no evidence of an actual

viewing or recording is needed to establish an invasion of privacy. See Kohler

v. City of Wapakoneta, 381 F. Supp. 2d 692, 703-04 (N.D. Ohio 2005)

(placement of a tape recorder in a women’s bathroom stall was enough to

establish a claim of intrusion, even if the device did not capture “personal

noises,” because an “invasion consists solely of an intentional interference

with [a] person’s interest in solitude” (internal quotation omitted)); Amati v.

City of Woodstock, 829 F. Supp. 998, 1000-01, 1009-11 (N.D. Ill. 1993)

(alleged recording of phone conversations sufficiently stated a privacy claim

regardless of whether anyone actually overheard any conversations);

Hernandez v. Hillsides, Inc., 211 P.3d 1063, 1077-78 (Cal. 2009) (plaintiffs

did not need to show they were recorded or viewed by a hidden video camera

in the workplace to establish an intrusion); Koeppel v. Speirs, 808 N.W.2d

177, 178, 184-85 (Iowa 2011) (privacy tort protects against the placement of a

functional surveillance device in a bathroom, without requiring proof that

someone accessed the private information); New Summit Assocs. Ltd. P’ship

v. Nistle, 533 A.2d 1350, 1354 (Md. Ct. Spec. App. 1987) (“To establish an

invasion of her privacy, appellee was not required to prove that a particular

                                       24
individual actually observed her while she used the facilities in her bathroom.

The intentional act that exposed that private place intruded upon appellee’s

seclusion.”); Hamberger v. Eastman, 206 A.2d 239, 242 (N.H. 1964)

(landlord’s alleged bugging of a bedroom, even though there was “no

allegation[] that anyone listened or overheard any sounds or voices originating

from the plaintiffs’ bedroom,” sufficiently stated a claim).

      Some courts have noted that the absence of direct proof of a recording or

an actual viewing could affect a damages award but not a party’s ability to

state a claim. See Carter v. Innisfree Hotel, Inc., 661 So. 2d 1174, 1179 (Ala.

1995) (hotel patrons need not demonstrate someone actually peered through

peep holes scratched into a mirror in their room, “[a]lthough the absence of

proof that anyone used the scratches for spying may be relevant to the question

of the amount of damages to which the [plaintiffs] would be entitled”); Harkey

v. Abate, 346 N.W.2d 74, 75-76 (Mich. Ct. App. 1983) (installation of see-

through panels in the ceiling of a women’s bathroom at a roller rink can

constitute an interference with privacy; absence of proof that a device was

used “is relevant to the question of damages” but “not fatal to plaintiff’s

case”).

      Other jurisdictions require more than the presence of an eavesdropping

device or a pathway to see into a private space. To state a cause of action for

                                       25
invasion of privacy, those courts require some showing that a defendant

actually saw or heard private activities. See Moffett v. Gene B. Glick Co.,

Inc., 621 F. Supp. 244, 256, 284 (N.D. Ind. 1985) (discovery of an intercom

hidden in an office kitchen did not establish an invasion of privacy; although

the “intercom may have made it possible to overhear a conversation, no

intrusion would have occurred until something was actually overheard” );

LeCrone v. Ohio Bell Tel. Co., 201 N.E.2d 533, 535-36, 538 (Ohio Ct. App.

1963) (plaintiff presented a prima facie case of invasion of privacy with

evidence that her estranged husband arranged for an extension on her private

phone line to be placed at his home, coupled with sufficient proofs to find

“that conversations were in fact intercepted”); Marks v. Bell Tel. Co. of Pa.,

331 A.2d 424, 431 (Pa. 1975) (although private conversations were recorded,

no invasion of privacy was established because there was no proof that anyone

listened to them); see also Johnson v. Allen, 613 S.E.2d 657, 659-61 (Ga. Ct.

App. 2005) (plaintiffs’ claim for intrusion upon seclusion based on the

installation of a surveillance camera in a women’s restroom was properly

allowed to proceed; in addition to the presence of the camera, there was

“sufficient evidence to raise a reasonable inference that [the defendant] used

the camera to improperly monitor the . . . restroom”).




                                       26
                                       C.

      We agree with the Appellate Division and the courts in many other

jurisdictions that have concluded a victim does not have to present evidence

that she was secretly recorded to bring a cause of action for intrusion on

seclusion. See Friedman, 454 N.J. Super. at 94. The tort is tied to the

placement of a surveillance device in an area reasonably expected to be

private. See Koeppel, 808 N.W.2d at 184-85. It is the intrusion itself, and not

an actual viewing, that is critical. And that intrusion takes place when a victim

uses a private space where a spying device has been concealed; it does not

depend on when -- or whether -- direct evidence of actual spying is found.

      Imagine a secret camera in a bedroom used by a married couple.

Someone who hides a recording device there intrudes on and disrupts their

privacy, even if the couple cannot locate any video evidence. See Amati, 829

F. Supp. at 1010 n.22. The harm occurs when the electronic invasion of

privacy takes place, so long as “the intrusion would be highly offensive to a

reasonable person.” Restatement (Second) of Torts § 652B. Otherwise, an

intruder who could disable a device or erase a recording afterward would be

afforded more protection than a victim who suffered mental anguish because

her privacy was invaded. See Koeppel, 808 N.W.2d at 184. Also, as the




                                       27
ACLU aptly points out, with livestreaming of images today, there is often no

physical recording to be found.

      Learning that one has been viewed in a private moment, because of the

intentional efforts of another, under circumstances that would be highly

offensive to a reasonable person, satisfies the tort’s elements and purpose. See

Restatement (Second) of Torts § 652B; see also Prosser, 48 Cal. L. Rev. at 392

(“[T]he interest protected by this branch of the tort is primarily a mental

one.”). The absence of a recording can go to the issue of damages. See Carter,

661 So. 2d at 1179; Harkey, 346 N.W.2d at 75-76.

      To establish that an intrusion occurred, a victim may rely on

circumstantial evidence, and courts can draw reasonable inferences from the

proofs presented. See, e.g., Carter, 661 So. 2d at 1179 (there was “no need for

the [plaintiffs] to establish that they saw another’s eyes peering back at them

through their mirror” in light of reasonable inferences that could be drawn

from the evidence); accord Koeppel, 808 N.W.2d at 178, 184-85; Nistle, 533

A.2d at 1353-54. Even courts that examined whether private activities were

actually viewed or overheard have relied on circumstantial evidence. See

Johnson, 613 S.E.2d at 661; LeCrone, 201 N.E.2d at 538.

      To recover in a case like this, a victim would need to show that she used

an area reasonably expected to be private, like a restroom or locker room,

                                        28
while a recording device was concealed there. See Friedman, 454 N.J. Super.

at 94. A court could reasonably infer that someone who worked in the vicinity

of a bathroom around the same time a camera was hidden there met that

standard. Id. at 95. And a person who visited a building only once could also

satisfy the test with proof that she used a bathroom at the same time a camera

was there.

                                       IV.

                                        A.

      We turn now to the summary judgment motion defendants filed in 2014.

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact challenged and that

the moving party is entitled to a judgment or order as a matter of law.” R.

4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995).

To decide whether a genuine issue of material fact exists, the trial court must

“draw[] all legitimate inferences from the facts in favor of the non-moving

party.” Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016). Accordingly,

the trial court must “consider whether the competent evidential materials

presented, when viewed in the light most favorable to the non-moving party,




                                        29
are sufficient to permit a rational factfinder to resolve the alleged disputed

issue in favor of the non-moving party.” Brill, 142 N.J. at 540.

      A key aim “of the summary judgment rule is to isolate and dispose of

factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 U.S.

317, 323-24 (1986). Summary judgment should be granted, in particular,

“after adequate time for discovery and upon motion, against a party who fails

to make a showing sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the burden of proof at

trial.” Id. at 322.

      The rule is not meant to “shut a deserving litigant from his [or her]

trial.” Brill, 142 N.J. at 540 (alteration in original) (quoting Judson v. Peoples

Bank & Tr. Co., 17 N.J. 67, 77 (1954)). It is “‘inappropriate’ to grant

summary judgment when discovery is incomplete and ‘critical facts are

peculiarly within the moving party’s knowledge.’” James v. Bessemer

Processing Co., 155 N.J. 279, 311 (1998) (quoting Velantzas v. Colgate-

Palmolive Co., 109 N.J. 189, 193 (1988)). By contrast, a motion for summary

judgment can be approved when the party opposing the application is in

control of the information sought. See Liberty Surplus Ins. Corp. v. Nowell

Amoroso, P.A., 189 N.J. 436, 451 (2007). “[S]ummary judgment is not

premature merely because discovery has not been completed, unless” the non-

                                        30
moving party can show “‘with some degree of particularity the likelihood that

further discovery will supply the missing elements of the cause of action. ’”

Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015) (quoting Wellington

v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div. 2003)).

                                       B.

      We apply that standard to the summary judgment record the parties

presented to the trial court in 2014. An employee discovered a camera in a

women’s restroom, and video footage from a camera in the women’s locker

room was also recovered. It is beyond dispute that the cameras were located in

inherently private places where women had a reasonable expectation of

privacy.

      Aside from those facts, however, the state of the record presents a

number of challenges. Counsel for the owner-managers estimated at oral

argument in 2013 that there are fifteen women’s restrooms in the building,

three on each floor. The ING employee found a camera in a third-floor

restroom.

      According to the record presented by the owner-managers in their cross-

appeal from the 2016 summary judgment decision, women who identified

themselves on video footage used restrooms on the third, fourth, and fifth

floors, as well as the bathroom near the women’s locker room on the first

                                       31
floor. The police, however, were not able to identify which specific bathrooms

Martinez filmed or when he did so.

      At the time of the 2014 motion, the record revealed that a camera had

been found in the third-floor bathroom -- one of several cameras overall.

Excerpts from some of the plaintiffs’ depositions mentioned other items that

were or might have been cameras, which had been thrown out without having

been reported or investigated. There was little in the 2014 record about the

time period during which the filming took place, other than that it spanned

different seasons of the year based on the type of women’s clothing depicted in

the videos.

      In a deposition taken on April 16, 2014, after the summary judgment

motion, Detective Taylor said that Martinez admitted filming for a period of

six months to a year, and that four cameras were recovered. The detective

could not say whether Martinez had filmed multiple bathrooms at the same

time, or when he moved cameras from one restroom to another. To complicate

matters further, Martinez admitted that he erased some of the images after

viewing them.

      The Arendt plaintiffs were not captured on the existing video footage.

Plaintiffs’ sixth amended complaint alleges generally that “[o]n multiple and

numerous occasions up to and including November 23, 2009, plaintiffs were

                                      32
subjected to covert and unwanted photographing, filming, videotaping and/or

other forms of recording by means of hidden devices while using the women’s

restroom at their place of employment at 400 Atrium Drive.”

      To be clear, it was not necessary for plaintiffs to offer video footage of

themselves to survive summary judgment. And as the non-moving party, the

Arendt plaintiffs are entitled to all reasonable inferences in their favor. That

said, the evidence falls short of demonstrating facts within their control: that

they used bathrooms with cameras during the relevant time period.

      In 2013, counsel suggested he could present affidavits from each of the

more than thirty plaintiffs along these lines: “I used the bathroom on the third

floor or -- and/or the fifth floor every day that I was at work.” But no such

affidavits or certifications were presented, and none appeared in the record in

2014, as counsel conceded at oral argument. The record at the time does not

reveal where or when the Arendt plaintiffs worked in the office building,

which restrooms they used, or the particular restrooms the Friedman plaintiffs

used, which could have helped identify where cameras had been placed. 5




5
   We do not suggest that, in cases like this, plaintiffs have to view videos of
other victims to gather sufficient evidence to vault the summary judgment
standard. Each case is fact-sensitive, and when other evidence is available, it
is best to avoid re-victimizing victims by having others view invasive videos
of them.
                                        33
      Nearly three years after the filing of the initial complaint, despite a

motion for summary judgment and extensive argument about the state of the

record, the Arendt plaintiffs had not offered proof from which one could

reasonably infer that they used a restroom while a camera was placed there.

And the court could not reasonably infer from the record that cameras had

been placed in all fifteen bathrooms. It was therefore not possible for the trial

court to find that plaintiffs had satisfied their burden by a preponderance of the

evidence at the summary judgment stage.

      It does not appear that the trial judge interpreted the tort’s elements so

differently from the Appellate Division that a remand is appropriate. Plaintiffs

had an opportunity to present proofs to the trial court before the judge ruled in

2014. And all parties are entitled to have their case decided on the basis of the

record before the trial court at the time summary judgment is decided. We

respectfully will not consider representations at oral argument about evidence

developed later on remand. See Scott v. Salerno, 297 N.J. Super. 437, 447

(App. Div. 1997) (“[A]ppellate review is confined to the record made in the

trial court, and appellate courts will not consider evidence submitted on appeal

that was not in the record before the trial court.” (citation omitted)). In light

of the nature of the record in 2014, we cannot say the trial court erred by

granting summary judgment.

                                        34
      Nor can we find that summary judgment was premature here. Counsel

for plaintiffs bases that argument on materials sought from the prosecutor’s

files. But counsel has not shown that any outstanding “discovery [would]

supply the missing elements of the cause of action.” Badiali, 220 N.J. at 555

(quoting Wellington, 359 N.J. Super. at 496). Not only is there no particular

explanation about what the files would likely reveal, but Detective Taylor’s

deposition after the summary judgment motion suggests they might reveal very

little. He testified the police did not uncover the precise location or timeframe

of the filming and stopped trying to identify victims from the footage after

identifying about fifteen women. In conducting a criminal investigation, the

police understandably did not have precisely the same objective as later civil

litigants. In any event, without some showing of how the requested materials

could help the Arendt plaintiffs state a prima facie claim of intrusion, it was

not premature to grant summary judgment after three years of discovery.

      We therefore reinstate the trial court’s order. As a result, we need not

reach the issues in defendant’s cross-appeal.6


6
  The Appellate Division noted that it did “not address plaintiffs’ other
pleaded causes of action because the motion judge also gave them no
consideration in dismissing [plaintiffs’] claims.” Friedman, 454 N.J. Super. at
95 n.6. On direct appeal, plaintiffs did not advance arguments independent of
the intrusion claim for other counts in the complaint. Like the Appellate
Division, we therefore do not consider those other counts and do not remand
for further review.
                                        35
                                      V.

      For the reasons stated above, we reverse the judgment of the Appellate

Division and reinstate the trial court’s order granting summary judgment.



    JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.




                                      36
