                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-5397-10T2

PATRICIA SOLIMAN,

     Plaintiff-Appellant,
v.                                    APPROVED FOR PUBLICATION

                                         October 17, 2013
THE KUSHNER COMPANIES, INC.
a/k/a KUSHNER COMPANIES;                APPELLATE DIVISION
WESTMINSTER MANAGEMENT,
L.L.C.; CK BERGEN HOLDINGS,
L.L.C. a/k/a CK BERGEN
HOLDINGS; CK BERGEN
ASSOCIATES, L.L.C. a/k/a
CK BERGEN ASSOCIATES;
KUSHNER PROPERTIES, INC.;
WESTMINSTER MANAGEMENT, L.P.;
ROUTE 208 ASSOCIATES, L.L.C.;
PHIL CHAIKLIN; HIGH TECH
INSTALLATIONS; and HIGH TECH
DEPOT, L.L.C.,

     Defendants-Respondents.



MICHELE F. AVRIN,

     Plaintiff-Appellant,

v.

THE KUSHNER COMPANIES, INC.
a/k/a KUSHNER COMPANIES;
WESTMINSTER MANAGEMENT,
L.L.C.; CK BERGEN HOLDINGS,
L.L.C. a/k/a CK BERGEN
HOLDINGS; CK BERGEN
ASSOCIATES, L.L.C. a/k/a
CK BERGEN ASSOCIATES;
KUSHNER PROPERTIES, INC.;
WESTMINSTER MANAGEMENT, L.P.;
ROUTE 208 ASSOCIATES, L.L.C.;
PHIL CHAIKLIN; HIGH TECH
INSTALLATIONS; and HIGH TECH
DEPOT, L.L.C.,

    Defendants-Respondents.



CaC (infant Plaintiff #1) by
her mother MAC (Plaintiff #2)
and MAC (Plaintiff #2)
individually;, AaC (infant
Plaintiff #3) and AyC (infant
Plaintiff #4) by their mother
RLC (Plaintiff #5) and RLC
(Plaintiff #5) individually;
TaK (infant Plaintiff #6) by
her father ToK (Plaintiff #7)
and ToK (Plaintiff #7)
individually; SG (infant
Plaintiff #8) by his mother
AG (Plaintiff #9) and AG
(Plaintiff #9 individually);
DK (infant Plaintiff #10) by
her father JK (Plaintiff #11)
and JK (Plaintiff #11)
individually; DeL (infant
Plaintiff #12) and TL (infant
Plaintiff #13) and DaL
(infant Plaintiff #14) by
their mother DL (Plaintiff
#15) and DL (Plaintiff #15)
individually; JG (infant
Plaintiff #16) by his mother
JJ (Plaintiff #17) and JJ
(Plaintiff #17) individually);
JL (infant Plaintiff #18) and
TL (infant Plaintiff #19) by
their mother GCL (Plaintiff
#20) and GCL (Plaintiff #20)
individually; ST (infant
Plaintiff #21) and AT (infant
Plaintiff #22) by their mother
LT (Plaintiff #23) and LT



                                 2   A-5397-10T2
(Plaintiff #23) individually;
AY (infant Plaintiff #24), and
LY(infant Plaintiff #25) by
their mother WFY (Plaintiff
#26) and WFY (Plaintiff #26)
individually; KrZ (infant
Plaintiff #27) by her mother
KZ (Plaintiff #28) and KZ
(Plaintiff #28) individually;
BF (infant Plaintiff #29) and
AF (infant Plaintiff #30) by
their parents RF (Plaintiff
#31) and MF (Plaintiff #32)
and RF (plaintiff #31) and MF
(Plaintiff #32) each
individually; AN (infant
Plaintiff #33) and RN (infant
Plaintiff #34) by IN
(Plaintiff #35 and IN
(Plaintiff #35) individually;
JJa (infant Plaintiff #36)
by her parents JaJ (Plaintiff
#37) and MC (Plaintiff #38)
and JaJ (Plaintiff #37) and
MC (Plaintiff #38)
individually; CB (Plaintiff
#39); YC (Plaintiff #40); GE
(Plaintiff #41), Edi
(Plaintiff #42); AD
(Plaintiff #43);, EDr
(Plaintiff #44); ADr
(Plaintiff #45); GF
(Plaintiff #46); SF
(Plaintiff #47); CL
(Plaintiff #48); AL
(Plaintiff #49); MMa
(Plaintiff #50); KBM
(Plaintiff #51); MMo
(Plaintiff #52); KN
(Plaintiff #53); MP
(Plaintiff #54); IR
(Plaintiff #55); KS
(Plaintiff #56); CS
(Plaintiff #57); BS
(Plaintiff #58); LW
(Plaintiff #60); and EF



                                 3   A-5397-10T2
(Plaintiff #60);

     Plaintiffs-Appellants,

v.

THE KUSHNER COMPANIES, INC.
a/k/a KUSHNER COMPANIES;
WESTMINSTER MANAGEMENT,
L.L.C.; CK BERGEN HOLDINGS,
L.L.C. a/k/a CK BERGEN
HOLDINGS; CK BERGEN
ASSOCIATES, L.L.C. a/k/a
CK BERGEN ASSOCIATES;
KUSHNER PROPERTIES, INC.;
WESTMINSTER MANAGEMENT, L.P.;
ROUTE 208 ASSOCIATES, L.L.C.;
PHIL CHAIKLIN; HIGH TECH
INSTALLATIONS; and HIGH TECH
DEPOT, L.L.C.,

     Defendants-Respondents.


RICKY DIPILLA, MARY ELLEN
PHELAN, PERRY DEATON, KENNETH
THIMMEL, JONATHAN SCOTT
STEPHENS, PHYLLIS RUBIN,
VIVIANA A. WISSE, MARY
PETRUCELLO, MIKE O'SULLIVAN,
LAURA PHELAN, EDWARD ROBINSON
and WILLIAM NEWMAN,

     Plaintiffs,

v.

ROUTE 208 ASSOCIATES, LLC,
THE KUSHNER COMPANIES,
WESTMINSTER MANAGEMENT, LLC,
CK BERGEN HOLDINGS, LLC,
KUSHNER PROPERTIES, INC.,
WESTMINSTER MANAGEMENT, L.P.,

     Defendants.




                                4   A-5397-10T2
           Argued May 16, 2012 - Decided October 17, 2013

           Before Judges Fuentes, Graves, and Harris.

           On appeal from Superior Court of New Jersey,
           Law Division, Bergen County, Docket No. L-2581-08.

           Gerald H. Baker argued the cause for appellants
           (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C.,
           attorneys; Lawrence M. Simon and Mark J. Cintron, on
           the brief).

           Derek A. Ondis argued the cause for respondents High
           Tech Installations, High Tech Depot, L.L.C., and Phil
           Chaiklin (Romando, Zirulnik, Sherlock & DeMille,
           attorneys; Mr. Ondis, on the brief).

           Stuart J. Polkowitz argued the cause for respondents
           The Kushner Companies, Inc., Westminster Management,
           L.L.C., CK Bergen Holdings, L.L.C., CK Bergen
           Associates, L.L.C., Kushner Properties, Inc,
           Westminster Management, L.P., and Route 208
           Associates, L.L.C. (Mautone & Horan, P.A., and Brach
           Eichler L.L.C., attorneys; James J. Horan and Mr.
           Polkowitz, of counsel and on the briefs).

           The opinion of the court was delivered by

FUENTES, P.J.A.D.

      These are four consolidated law suits brought by employees

of   tenants    and   members   of   their    families,    including    minors,

against   the    landlord   and   managers     of   this   commercial    office

building, as well as a number of other companies responsible for

installing      and   maintaining     video    monitoring     and   recording




                                       5                                A-5397-10T2
equipment intentionally concealed inside smoke detectors in four

public bathrooms, two male and two female.1

     Defendants claimed the cameras were positioned to monitor

or focus only on the "common area" of the bathrooms, where the

washbasins are located.         Stated differently, defendants claim

the cameras were not placed to monitor the toilet stalls and

therefore did not invade or violate plaintiffs' expectation of

privacy.

     It is not disputed that the managers of the office building

installed   this    surveillance      equipment   in    2003,    ostensibly      in

response to complaints made by certain tenants of vandalism and

damage to bathroom facilities.             The scope and nature of the

vandalism   included     both   the    area   where     the     washbasins      are

located, as well as the toilet areas.             Specifically, defendants

allege tenants complained the toilets in these bathrooms were

overflowing and being rendered unusable by unknown individuals

intentionally      or   negligently    placing    paper       towels    or   other

obstructions into the toilet bowls to block or impede the flow

of water.      According to defendants, they installed the video

surveillance    equipment    and   concealed      the   cameras        inside   the




1
  Plaintiffs alleged that some of their children used the
bathrooms when they visited on "Take Your Child to Work Day."



                                       6                                  A-5397-10T2
bathrooms' smoke detectors to deter this vandalism and gather

evidence against the alleged vandals.

       Although installed and made operational in 2003, defendants

claimed the entire video surveillance equipment lay dormant and

unused    for     four   years.         Defendants       claimed     the     stealthy

monitoring of the bathrooms began in 2007, and only functioned

for three continuous days.

       This monitoring operation came to an abrupt end only by

sheer happenstance, when a tenant employee walked by a closet

with a sign on the door that read: "Authorized Personnel Only."

Although defendants intended the closet door to remain closed

and locked at all times, that day the door was inadvertently

left    ajar.     When   the   employee       looked    inside     the   closet,    he

discovered video monitors displaying a live video feed of the

four bathrooms.

       This   employee   immediately         reported    his   discovery      to   the

local    police     department.         The     responding        police     officers

investigated the claim and confirmed the existence of the video

surveillance      operation,      and    disconnected       the     camera     lenses

concealed inside the smoke detectors.                  An investigator from the

Bergen County Prosecutor's Office took custody of the computer

equipment for further investigation.                   It is not disputed that




                                         7                                   A-5397-10T2
law enforcement authorities decided not to file criminal charges

against anyone connected with the surveillance operation.

    In these consolidated civil complaints, plaintiffs allege

intentional     and   negligent        infliction        of   emotional    distress,

common law invasion of privacy, and invasion of privacy under

N.J.S.A. 2C:58D-1(b).             Plaintiffs seek common law compensatory

damages, punitive damages under the Punitive Damages Act (PDA),

N.J.S.A.    2A:15-5.9       to     -5.17,       and    statutory   damages        under

N.J.S.A. 2C:58D-1(c).            Plaintiffs argue the evidence permits a

rational fact finder to infer that the camera lenses concealed

inside the smoke detectors may have been positioned, at least

part of the time, to monitor the toilet stalls -- areas of the

bathrooms defendants conceded are private.                      However, even if

this covert video surveillance operation was limited to the so-

called    common    areas    of    the    bathrooms,      plaintiffs      argue   they

still    have   a   cognizable         cause    of     action   under     these    same

theories of liability.

    The Law Division granted defendants' motions for summary

judgment and dismissed plaintiffs' cause of action as a matter

of law.    The motion judge accepted defendants' factual claims as

to the nature and scope of the video surveillance operation, and

found    plaintiffs    did       not     have   a     reasonable   expectation      of




                                            8                                A-5397-10T2
privacy in the areas of the bathrooms outside the toilet stalls

where the wash basins are ordinarily located.

      In this appeal, plaintiffs argue the motion judge erred in

accepting defendants' claims concerning the nature and scope of

the surveillance operation because, from the evidence presented,

a rational jury could reject defendants' claim and find in favor

of    plaintiffs'      factual     contention       that   the     scope    of    the

surveillance included the toilet stalls.                   Independent of this

material factual dispute, plaintiffs argue that the motion judge

erred, as a matter of law, by concluding plaintiffs did not have

a    reasonable    expectation        of   privacy    in   the     areas    of    the

bathrooms outside the toilet stalls where the washbasins are

located.

      We agree with plaintiffs' argument and reverse the trial

court's order dismissing the counts in their complaints grounded

on invasion of privacy.               The trial court erred in dismissing

plaintiffs'    complaints        as    a   matter     of   law.      Under       these

circumstances, a rational jury could find defendants' actions

violated plaintiffs' reasonable expectations of privacy.                         These

material    issues     of   fact      cannot   be   resolved      through    summary

judgment.         We   affirm,     however,     the    court's      dismissal      of

plaintiffs' claims based on intentional and negligent infliction

of emotional distress.




                                           9                                A-5397-10T2
      In our view, a rational jury could find that shielding the

cameras    from         detection    by     placing     them     inside      facially

innocuous,        yet    ubiquitous       safety    devices,       such    as      smoke

detectors, is more suggestive of a sinister voyeuristic purpose

than a good faith reasonable attempt at combating vandalism.

This plausible conclusion by a jury is further supported by

defendants' decision to disregard the suggestions made by the

Fair Lawn Police Department to place a sign on the bathroom

doors alerting all who entered that the bathroom's so-called

"common areas" were monitored by video cameras.

      However, even assuming a good faith motive, a rational jury

could find that the approach adopted by defendants here is per

se   unreasonable        because:    (1)    the    clandestine      nature      of    the

surveillance operation negated the deterrent effect defendants

allegedly sought to create; (2) acts of vandalism to bathrooms

do not justify the installation of a covert video surveillance

system to monitor inherently private areas like bathrooms; (3)

although all areas of a bathroom are deemed private, bathrooms

intended     to    be     used   exclusively       by   women      and    girls       are

inherently    more       susceptible       to   invasion    of   privacy        claims.

Plaintiffs can present evidence to a jury that women and girls

utilize    public       bathrooms,    including     areas   outside       the    toilet

stalls,    with     the    reasonable      expectation      that    their       private




                                           10                                   A-5397-10T2
grooming activities will only be visible to fellow female users

who may be present at the time; and (4) both men and women may

have used the so-called quasi-public areas of the bathrooms to

perform personal grooming or other private activities when no

one else was visibly present that they would have otherwise

refrained from performing even in the presence of members of

their own gender.

    Based   on   these    plausible    findings,   plaintiffs   may    be

entitled to compensatory relief under both common law principles

of privacy and pursuant to the specific cause of action for

invasion of privacy authorized by the Legislature under N.J.S.A.

2A:58D-1.   Depending on whether the jury awards compensatory

damages, plaintiffs have also presented sufficient evidence to

preserve the right to seek an award of punitive damages in a

bifurcated proceeding as required under the PDA.

    Because the trial court dismissed plaintiffs' cases as a

matter of law, we review all facts in the light most favorable

to plaintiffs, including any inferences that may be drawn from

the evidence presented.    Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 540 (1995); R. 4:46-2(c).

                                  I

    At all times relevant to this case plaintiffs Soliman and

Avrin worked in an office building located on Route 208 in Fair




                                  11                            A-5397-10T2
Lawn.     CaC plaintiffs were employees and parents of children who

visited    their   parents   on   "Take   Your   Child   to   Work   Day,"   at

offices owned by defendants.         These children used the bathrooms

while at the office building.        Although      the    bathrooms        were

locked, defendants provided keys to all             tenants who in turn

supplied them to their employees.

    Route 208 Associates was the landlord of the building in

2003.     In response to plaintiffs' interrogatories, defendants

gave the following explanation for their decision to install

video recording equipment in the bathrooms:

            In 2003, in response to ongoing vandalism in
            both the men's and women's bathrooms located
            on   the  upper   level   of   the   building,
            surveillance cameras were installed in the
            bathrooms, although at that time were not
            wired or otherwise made operational.     Prior
            to   the  installation   of   those   cameras,
            representatives of tenant, Maxell . . . had
            communicated complaints to the building
            management regarding the conditions in the
            restrooms including complaints of paper
            being stuffed down toilets with resulting
            backup, overflow, etc.       In addition to
            expending money for plumbing repairs, the
            defendant's building manager spoke with the
            Fairlawn [sic] Police who suggested placing
            hidden cameras in the restrooms for the
            purpose of identifying who was going in and
            out, or putting "fake" cameras in the
            restrooms   with   a   sign   indicating   the
            premises were under surveillance.          The
            police     department     suggestions     were
            communicated to . . . Maxell via email of
            May 28, 2003.     Although defendant's email
            asked Maxell what it would be comfortable
            with, Maxell's representative replied that



                                     12                               A-5397-10T2
they "do not need to even know what action
you elect to take. . . ."

The incidents of vandalism subsided for some
time, but then intensified in 2007 as
evidenced by further emails from Maxell's
representatives to building management and
visa [sic] versa. In an effort to identify
the vandals, the building managers arranged
to   make   the   cameras    operation,  which
included the installation of a digital video
recorder (DVR) and a monitor located in a
maintenance closet.       The cameras became
functional on or about March 28 or 29, 2007
and then were observed by one or more
employees of the buildings tenants who were
passing the maintenance closet.          These
observations by employees of the buildings
tenants resulted in calls to the Fairlawn
[sic] Police Department who responded to the
location on or about March 30, 2007.       The
Bergen     County      Prosecutor's     Office
subsequently took possession of the video
monitor, DVR, and other equipment.

The surveillance cameras were positioned in
such a way that although people could be
seen entering or exiting the bathrooms and
near the sink areas, they would not be
observed at or in the stalls or at the
urinals in the men's room. It was expected
that any images captured by the surveillance
cameras would depict people entering and
leaving the restroom areas.     The DVR that
was    recording   the   images     from  the
surveillance cameras was confiscated by the
Bergen    County  Prosecutor's    Office  who
investigated the matter.     Upon belief, no
case was presented to a Grand Jury and the
Prosecutor's Office decided not to pursue a
prosecution against anyone.     The defendant
has no knowledge that its employees stopped
to view images on the video monitor nor
reviewed any recorded images on the DVR.

(Emphasis added).



                     13                          A-5397-10T2
    Plaintiff     Patricia   Soliman   submitted   a   certification    in

opposition   to    defendants'    motion    for    summary      judgment.

Plaintiff's counsel used Ms. Soliman's certification in direct

support of her personal claims and as representative of the type

of privacy injury suffered by the women and girls who used these

bathrooms:

              After learning about the discovery of
         the hidden cameras I felt that my rights had
         been violated and my privacy invaded.

              I no longer trusted the environment
         within the building, and in particular the
         bathrooms.

              I lived in Hawthorne at the time and
         after the discovery of the cameras, I would
         go home for lunch to use my bathroom and to
         the extent possible would "hold it in"
         throughout the day.

              I   continue  to  this  day  to  have
         psychological issues as a direct result of
         the discovery of the cameras, and continue
         to have difficulty trusting public places
         such as bathrooms and dressing rooms, as
         well as new environments such as hotel
         rooms.

              The location of the hidden devices
         within   the  bathrooms  was in immediate
         proximity to the stalls.

              During the time I worked in the
         building, prior to the discovery of the
         cameras, I would use the restroom several
         times per day.

              During the time I worked in                 the
         building, prior to the discovery of              the



                                  14                             A-5397-10T2
             cameras, I would on occasion change clothing
             in the sink areas of the bathroom, keeping
             on   undergarments  while   changing   outer
             layers.

                  I    consider    being   viewable    in
             undergarments by members of the opposite sex
             to be a violation of my expectations of
             privacy.

                  Had I known I could be viewable by
             members of the opposite sex through cameras,
             I would never have changed in the bathrooms,
             and would have avoided use of the bathrooms
             completely.

             (Emphasis added).

      At her counsel's request, Soliman consulted with Dr. Peter

Crain,   a   physician         and   diplomate     of    the    American       Board      of

Psychiatry and Neurology, and of the American Board of Forensic

Psychiatry.         Dr.    Crain     opined      that    Soliman      did     not     trust

restrooms    and     as    a    consequence      suffers       from    anxiety.            He

diagnosed Soliman as suffering from "Specific Phobia to Public

Restrooms."        Because she avoided using the restroom at work and

avoided eating and drinking during work hours, Soliman developed

distention of the bladder, hypoglycemia, and anxiety; she also

has difficulty with focusing.                 Despite Dr. Crain's evaluation

and   diagnosis,          Soliman      decided     not    to     seek        psychiatric

treatment.    She    hoped      that    her    anxieties       and    fear    of     public

bathrooms would subside after she left her employment.




                                          15                                       A-5397-10T2
       Avrin claimed her psychological injuries resulting from the

incident on March 30, 2007, manifested in her developing an

obsessive compulsive preoccupation or disorder with her privacy.

These psychological factors, such as fear of public restrooms

and difficulty sleeping, also affected her physical condition,

causing     ocular         migraines.           Although       she        claimed       to    have

consulted      with    a    physician,         she    did    not    supply       a     report    or

claims expenditures for medical care as a measure of damages.

       However,       Avrin    also       consulted         with     Dr.       Crain     on     one

occasion       and         rendered        a         report        to      document           this

medical/psychiatric intervention.                      She complained to Dr. Crain

of   waking    during       the    night       and    suffering         from     two    migraine

headaches.        Dr.        Crain    diagnosed         Avrin        as     suffering         from

obsessive compulsive disorder and aggravation of pre-existing

migraines      due     to     stress.            Dr.        Crain       submitted        Avrin's

evaluation less than two weeks after the incident.                                   As was the

case    with    Soliman,          Avrin    opted       to     defer        any       psychiatric

treatment to see if her symptoms would improve on their own over

time.

       The CaC plaintiffs all provided similar accounts of their

emotional trauma and medical experiences in their responses to

defendants' interrogatories.                    The infant plaintiffs described

their emotional injury in terms of "wounded sensibility."                                        In




                                               16                                        A-5397-10T2
their    capacity       as    guardians       ad    litem,     the    parents       of    the

affected      children        alleged     claims      that        included     phobia      of

bathrooms,          anxiety,          embarrassment,          emotional         distress,

humiliation, depression, anger, and nervousness.                              All of the

parents      also    alleged     experiencing         anxiety      when     using    public

restrooms and all of the CaC plaintiffs invoked the statutory

cause of action under N.J.S.A. 2A:58D-1 as a basis for liability

for invasion of privacy.

       Five   CaC     adult      plaintiffs        provided    expert       reports      from

psychologist Dr. Moti Peleg, who is also                           Board certified in

traumatic      stress      and    a    diplomate     of     the    American     Board      of

Forensic Examiners and the American Academy of Pain Management.

       Dr.    Peleg     diagnosed        RF    as    suffering       from     generalized

anxiety disorder.            He noted, however, that Minnesota Multiphasic

Personality         Inventory     (MMPI)      psychological         testing     would      be

needed to determine if there was a causal connection between the

incident,     and     to     ascertain     whether     RF     suffered       from   a    pre-

existing anxiety/panic condition and, if so, whether the pre-

existing condition had been exacerbated by this incident.

       With respect to AG, Dr. Peleg diagnosed her as suffering

from    generalized        anxiety      disorder,     despite        initially      finding

only mild forms of post-traumatic stress disorder (PTSD).                               Aside

from fear of using public restrooms, Dr. Peleg opined that AG




                                              17                                    A-5397-10T2
did not report significant adverse effects on her life as a

consequence of this incident. She did not complain of being

depressed     or     anxious,          and   did         not     appear      to     be     visibly

traumatized.

      In    CB's    case,       Dr.    Peleg's      diagnosis         included       adjustment

disorder with mixed emotional features.                               However, he did not

relate this diagnosis to the incident at issue.                                   Dr. Peleg did

not find any indication of long term chronic symptoms due to the

incident.          Dr.    Peleg       diagnosed      LT        with   generalized          anxiety

disorder and major depression.                      As was the case with RF, Dr.

Peleg   qualified         his     diagnosis         by    noting       that       further       MMPI

psychological        testing      was    needed      to        rule    out    a    pre-existing

anxiety/panic condition.               Finally, with respect to RC, Dr. Peleg

diagnosed generalized anxiety disorder.                           He also noted that RC

did   not    appear       to    have     any     significant           long       term     chronic

symptoms due to the incident.

                                               II

      We begin our analysis by reaffirming that we review the

grant or denial of a motion for summary judgment de novo.                                       Town

of Kearny v. Brandt, 214 N.J. 76, 91 (2013).                                 We grant summary

judgment     only        "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




                                               18                                         A-5397-10T2
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).       We    must    determine       whether    "the       competent     evidential

materials presented, when viewed in the light most favorable to

the   non-moving         party,    are    sufficient       to    permit      a   rational

factfinder to resolve the alleged disputed issue in favor of the

non-moving party."          Brill, supra, 142 N.J. at 540.

      Applying this standard, we are satisfied that the record

cannot support the dismissal of plaintiffs' cause of action as a

matter of law.            Before addressing directly the many material

issues of fact in dispute, we will first delineate the legal

bases of plaintiffs' claims.

                                             A

      Our    Supreme       Court    has     acknowledged        that   the       right   to

privacy is "grounded" in the Fourteenth Amendment of the United

States Constitution's concept of "personal liberty."                             John Doe

v. Poritz, 142 N.J. 1, 77-78 (1995), (quoting Whalen v. Roe, 429

U.S. 589, 598 n.23, 599-600, 97 S. Ct. 869, 876 and n.23, 51 L.

Ed. 2d 64 73 and n.23 (1977)).                   As expressed in the Fourteenth

Amendment,       "the     right    of     privacy       safeguards     at    least       two

different        kinds    of    interests:       'the     individual        interest      in

avoiding disclosure of personal matters,' and 'the interest in




                                            19                                    A-5397-10T2
independence in making certain kinds of important decisions.'"

Id. at 77       (internal citation omitted).

       We recognize that the privacy rights characterized by the

Court as "grounded" in the Fourteenth Amendment apply only in

cases     alleging        unreasonable    and    intrusive      action      by     a

governmental actor.         Ibid.    Here, plaintiffs allege their right

to    privacy     was   violated    by   private    actors,    thus      rendering

inapplicable the Fourteenth Amendment's laudable protection.                      We

nevertheless       view     the   Fourteenth    Amendment      as    a    national

expression of public policy, a moral compass to help us focus on

the values that are at stake in this case.

       By contrast, independent of the privacy rights conferred by

the     federal    constitution      against    unreasonable        searches     or

seizures     by     governmental     actors,       our    Supreme     Court      has

recognized "at least" two New Jersey-centric bases protecting

the right to privacy: "the common law and article I, paragraph 1

of the New Jersey Constitution."                Hennessey v. Coastal Eagle

Point Oil Co., 129 N.J. 81, 94 (1992).                   Our rights to privacy

expressly provide New Jersey citizens with the legal means to

seek redress against all those who seek to undermine or violate

their privacy, regardless of their status as public or private

actors.

       The New Jersey Constitution provides:




                                         20                               A-5397-10T2
             All   persons   are   by  nature  free   and
             independent, and have certain natural and
             unalienable rights, among which are those of
             enjoying and defending life and liberty, of
             acquiring,    possessing,   and   protecting
             property, and of pursuing and obtaining
             safety and happiness. N.J. Const. art. 1,
             par. 1.

       The Court in John Doe v. Poritz, supra, 142 N.J. at 89,

reaffirmed        that   this    provision      in   our    State's    Constitution

guarantees to all the right of privacy.                    We have enforced this

constitutional right to privacy with equal vigor, finding it to

encompass "'the right of an individual to be . . . protected

from any wrongful intrusion into his [or her] private life which

would outrage or cause mental suffering, shame or humiliation to

a person of ordinary sensibilities.'"                      Burnett v. County. of

Bergen, 402 N.J. Super. 319, 332 (App Div. 2008), rev'd, in

part, on other grounds, 198 N.J. 408 (2009) (quoting McGovern v.

Van Riper, 137 N.J. Eq. 24, 32, 43 A.2d 514 (Ch. 1945), aff'd,

137 N.J. Eq. 548, 45 A.2d 842 (E. & A. 1946)).

       As   the    Court    noted     in   Hennessey,      supra,     the   right   to

privacy is also recognized and protected under our common law as

"the tort of intrusion on seclusion."                 129 N.J. at 94.       Adopting

the legal principles reflected in the Restatement (Second) of

Torts § 652B (1977), the Hennessey Court defined this privacy

tort   to   impose       civil   liability      on   "'[o]ne   who    intentionally

intrudes,     physically         or   otherwise,       upon    the     solitude     or



                                           21                                A-5397-10T2
seclusion of another or his private affairs or concerns, [this

individual      would    be]   subject   to     liability     to     the     other      for

invasion   of     his    privacy,   if   the     intrusion        would      be    highly

offensive to a reasonable person.'"                   Id. at 94-95 (emphasis

added).

       The comments section of the Restatement contains a number

of    scenarios    or    illustrations        that,   in    the    opinion        of    the

commentators, show how to trigger liability under this tort.                             In

our    view,    the     following   illustrations          involve    circumstances

analogous to the salient facts alleged by plaintiffs here.

               A, a woman, is sick in a hospital with a
               rare disease that arouses public curiosity.
               B, a newspaper reporter, calls her on the
               telephone and asks for an interview, but she
               refuses to see him. B then goes to the
               hospital, enters A's room and over her
               objection   takes  her  photograph.   B  has
               invaded A's privacy.

               [Restatement (Second) of Torts                 §      652B,
               comment B, illustration 1 (1977).]


               A, a young woman, attends a "Fun House," a
               public place of amusement where various
               tricks are played upon visitors. While she
               is there a concealed jet of compressed air
               blows her skirts over her head, and reveals
               her underwear. B takes a photograph of her
               in that position. B has invaded A's privacy.

               [Restatement (Second) of Torts                 §      652B,
               comment c, illustration 7 (1977).]




                                         22                                       A-5397-10T2
    In Villanova v. Innovative Investigations, 420 N.J. Super.

353, 360 (App. Div.), certif. denied, 208 N.J. 597 (2011), we

were recently presented with the opportunity to reexamine the

contours of the tort of invasion of privacy in the modern world

of electronic surveillance.            The plaintiff in Villanova sought

to recover damages from a private investigator hired by his wife

to investigate his "suspected infidelities."               Villanova,     supra,

420 N.J. Super. at 355.         The defendant placed a concealed global

positioning satellite (GPS) tracking device on the plaintiff's

car without his knowledge or consent.              Ibid.

    We       affirmed    the   trial     court's     decision      granting   the

defendant's motion for summary judgment.              Id. at 356.        Writing

for the panel, Judge Lisa explained that "the placement of a GPS

device in [the] plaintiff's vehicle without his knowledge, but

in the absence of evidence that he drove the vehicle into a

private or secluded location that was out of public view and in

which   he    had   a   legitimate     expectation    of   privacy,    does   not

constitute the tort of invasion of privacy."               Ibid.

    Our analytical approach to these types of cases has not

wavered.      "[O]ne    who    intentionally       intrudes,    physically     or

otherwise, upon the solitude or seclusion of another or his [or

her] private affairs or concerns, is subject to liability to the

other for invasion of his [or her] privacy, if the intrusion




                                        23                              A-5397-10T2
would be highly offensive to a reasonable person." Figured v.

Paralegal      Tech.      Serv.,   231    N.J.     Super.      251,    256    (App.      Div.

1989),       appeal       dismissed,       121    N.J.        666     (1990)     (quoting

Restatement (Second) of Torts § 652B (1977)) (emphasis added).

       Mindful of these legal standards, and based on our de novo

review of the record presented to the trial court, we conclude

that   plaintiffs         presented      sufficient         evidence    to    bring     this

matter    before      a   jury.        Here,      defendants        deployed    a     highly

invasive, intentionally clandestine video surveillance system in

bathrooms intended to serve the occupants and visitors of this

office complex.           This approach does not include, in our view, a

plausible      justification       for    concealing         the    video    lens     inside

smoke detectors or explain why defendants did not place a sign,

located at a conspicuous entry point of the bathrooms, alerting

all    who    entered      of   the   existence        of    surveillance       equipment

monitoring the so-called "common areas" of the bathrooms, as

specifically suggested by the Fair Lawn Police Department.

       Defendants         allege   that     the    surveillance         equipment         was

installed and rendered operational in 2003; yet it lay dormant

and unused for nearly four years.                   They further claim that the

actual       surveillance       operation    was       short-lived,         beginning       on

March 28, 2007, when High Tech Depot connected the cameras to a

digital      video    recorder     (DVR)    and    a    monitor       was    placed    in    a




                                            24                                      A-5397-10T2
maintenance closet that had a locked door marked "Authorized

Personnel Only."        It operated for nearly three days until it

was inadvertently discovered on March 30, 2007, when an employee

who worked in the office building passed by the maintenance

closet while the door was left ajar.

    The record shows that both the affected employees and the

building management called the Fair Lawn Police Department in

response to this discovery.            The former called the police to

report what they in good faith believed to be a criminal act

involving    the    violation    of   their   right    to   privacy,     possibly

including evidence of a scheme involving child pornography;                     the

latter called the police to remove "a news camera team" that was

on site investigating the incident.

    The     Bergen   County     Prosecutor's    Office      conducted    its    own

independent        investigation      and      concluded       that      criminal

prosecution    was    not   warranted.         It    took   possession    of    the

monitor, DVR, and other surveillance equipment.

    The     property    manager    told     police   that   the   cameras      were

installed to monitor the restrooms due to vandalism problems and

that they were strictly focused on the sink areas and did not

provide a view of the stalls.             Kushner defendants claimed that

the cameras were positioned only to allow observation of persons

at the sink areas.




                                       25                                A-5397-10T2
       Conversely,      plaintiffs       assert      that    the    cameras     were

positioned so that they also provided observation of the stall

areas.      To support this claim, plaintiffs relied on Detective

Jeffrey Welsh's statement on the third page of his supplemental

investigation report that stated: "the video monitor displayed

the 4 bathrooms showing the sink and bathroom stall areas."

Kushner defendants denied the cameras were ever positioned to

monitor the toilet stalls.               In rebuttal, defendants cite to

Police Officer Michael Franco's report, where he stated that for

all four restrooms, two male and two female, "there was no view

into the stalls, only the sink area."

       Exercising our de novo review, we conclude a rational jury

is   free   to    reject,     as   a   matter   of   credibility,        defendants'

assertion        that   the    surveillance       equipment        was    not   used

immediately after it became operational in 2003.                     A jury could

find defendants' account in this respect as merely reflective of

a    self-serving,      post-discovery     strategy     to    mitigate     damages.

Jurors may also accept Detective Jeffrey Welsh's statement that

the video monitor displayed images of "the sink and bathroom

stall areas."       If this plausible outcome is accepted by a jury,

it will satisfy plaintiffs' burden of proof as to liability

under the common law, that the intrusion involved here "'would

be highly offensive to a reasonable person.'"                 Hennessey, supra,




                                         26                                 A-5397-10T2
129 N.J. at 95 (quoting Restatement (Second) of Torts § 652B

(1977)).

    In Rumbauskas v. Cantor, the Court was asked to determine

"whether the tort of intrusion on seclusion is an 'injury to the

person' barred by the two-year limitation period set forth in

N.J.S.A. 2A:14-2 or is an 'injury to the rights of another'

barred by the six-year limitation period set forth in N.J.S.A.

2A:14-1."    138      N.J.    173,    175        (1995).         The   controversy        in

Rumbauskas arose from what Justice O'Hern characterized as "[a]n

innocuous rivalry between two suitors of a woman . . ."                              Ibid.

However,    what      began   as     "mere       harassment"       between    "suitors"

eventually      "escalated     into     stalkings          and    threats    to    kill."

Ibid.

    In addition to whatever involvement the parties had with

the criminal justice system, the plaintiff in Rumbauskas filed a

civil action seeking monetary damages for invasion of privacy.

Id. at 176-77.        In addressing the central legal question raised

in the appeal, i.e., what statute of limitation applies to a

cause of action grounded in the tort of invasion of privacy, the

Court   noted    it    had    previously         cited     with   approval2       the   Law



2
  This was a reference to Montells v. Haynes, 133 N.J. 282, 292
(1993), in which the Court held that the two-year statute of
limitations in N.J.S.A. 2A:14-2 applied to a cause of action
                                                    (continued)


                                            27                                    A-5397-10T2
Division   decision         in    Canessa   v.     J.I.    Kislak,       Inc.,     97       N.J.

Super.    327    (Law    Div.      1967),    "which       held    that     the    six-year

statute of limitations applied to an invasion-of-privacy claim."

Id. at 178.

    Faced       with    this     seemingly       analytical      paradox,        the    Court

noted    that   the     tort     of   invasion     of     privacy     in    Canessa          was

limited to the unauthorized, misappropriation and use of the

plaintiff's photograph or likeness to advance the defendant's

commercial interest.             Rumbauskas, supra, 138 N.J. at 179.                    Under

those    circumstances,           and   after       "analyzing        numerous          cases

attempting to clarify the concept of the tort of invasion of

privacy," the Law Division in Canessa concluded

            Entirely    apart,    however,    from    the
            metaphysical niceties, the reality of a case
            such as we have here is, in the court's
            opinion, simply this: plaintiffs' names and
            likenesses belong to them. As such they are
            property.   They   are   things   of   value.
            Defendant has made them so, for it has taken
            them for its own commercial benefit.

            [Ibid.   (quoting Canessa, 97 N.J. Super. at
            351) (emphasis added).]

    The     Court      in   Rumbauskas       ultimately       concluded          that       "the

problem"    with       considering       the      holding        in   Canessa          as     an




(continued)
brought under the Law Against Discrimination (LAD),                               N.J.S.A.
10:5-13. Rumbauskas, supra, 138 N.J. at 178-79.



                                            28                                     A-5397-10T2
analytical paradigm was that the common law tort of invasion of

privacy

          is not one tort, but a complex of four. The
          law of privacy comprises four distinct kinds
          of invasion of four different interests of
          the plaintiff, which are tied together by
          the common name, but otherwise have almost
          nothing   in   common    except  that   each
          represents an interference with the right of
          the plaintiff to be let alone.

          [Rumbauskas,   supra,        138   N.J.   at   179.
          (internal    citation         omitted)    (emphasis
          added).]

    In reaching this conclusion, the Court adopted the approach

endorsed by the Law Division in Canessa, supra, 97 N.J. Super.

at 33, as first articulated by William L. Prosser, in "The Law

of Torts," § 112 (3rd ed. 1964):

          The four classifications that Dean Prosser
          propounded   are:   (1)    intrusion   (e.g.,
          intrusion on plaintiff's physical solitude
          or seclusion, as by invading his or her
          home, illegally searching, eavesdropping, or
          prying into personal affairs); (2) public
          disclosure of private facts (e.g., making
          public private information about plaintiff);
          (3) placing plaintiff in a false light in
          the   public   eye   (which   need   not   be
          defamatory, but must be something that would
          be objectionable to the ordinary reasonable
          person); and (4) appropriation, for the
          defendant's benefit, of the plaintiff's name
          or likeness.

          [Rumbauskas, supra, 138 N.J. at 179 (citing
          W. Page Keeton, et al., Prosser and Keeton
          on the Law of Torts § 117 (5th ed. 1984)).]




                                  29                            A-5397-10T2
    Based        on    plaintiffs'        factual        contentions,      the    privacy

interest at stake here is freedom from "intrusion" or prying

into inherently non-public areas where there is a reasonable

gender-specific expectation of privacy.                         In this context, the

tort of invasion of privacy "is simply that [the] defendant's

conduct struck directly at the personhood of [the] plaintiff."

Id. at 182.           Comparing this injury to "the claim in Montells,

supra, 133 N.J. at 293," (an action brought by the plaintiff

under the LAD seeking compensatory damages for sexual harassment

and hostile work environment), the Court in Rumbauskas noted

that the "defendant's conduct 'cuts most deeply at the personal

level.'"    Ibid.

    In comparing the injuries suffered by a plaintiff in an LAD

action alleging sexual discrimination in the work place with the

injuries    or        damages      associated       with    or     recoverable       by    a

plaintiff   in        an    action     grounded     in    the    common    law    tort    of

invasion    of    privacy,        the    Court      in   Rumbauskas       cited    to     the

following passage from Montells, in which the Court noted the

Legislature's then recent amendments to the LAD specifying the

"harm   suffered           by   both   the   people      and     the   State     from     the

'personal   hardships'           caused      by    discrimination[.]"            Montells,

supra, 133 N.J. at 287 (emphasis added).                         These amendments to

the LAD clarified the meaning and expanded the scope of the type




                                              30                                  A-5397-10T2
of   "personal        hardships"    suffered    by     those      who    experience

invidious discrimination in the work place.

            The Legislature further finds that because
            of discrimination, people suffer personal
            hardships, and the State suffers a grievous
            harm.   The   personal   hardships    include:
            economic loss; time loss; physical and
            emotional stress; and in some cases severe
            emotional trauma, illness, homelessness or
            other irreparable harm resulting from the
            strain    of     employment    controversies;
            relocation, search and moving difficulties;
            anxiety caused by lack of information,
            uncertainty,    and     resultant     planning
            difficulty; career, education, family and
            social disruption; and adjustment problems,
            which particularly impact on those protected
            by this act. Such harms have, under the
            common law, given rise to legal remedies,
            including compensatory and punitive damages.
            The Legislature intends that such damages be
            available to all persons protected by this
            act and that this act shall be liberally
            construed    in   combination    with    other
            protections available under the laws of this
            State.

            [N.J.S.A. 10:5-3.]

     In    our   view,     and    most   importantly     consistent        with   the

Court's    own   views     in    Rumbauskas,    supra,      138    N.J.     at    179,

plaintiffs who have experienced a violation of their personal

privacy    may    have     endured       many   of   these        same    "personal

hardships."      We thus hold that a plaintiff in a cause of action

predicated on the tort of invasion of privacy, grounded in the

subcategory      of    "invasion    of   intrusion     on    [the]       plaintiff's

physical      solitude       or      seclusion,"       which        include       the



                                         31                                 A-5397-10T2
characteristics of unconsented prying, may recover compensatory

damages for "personal hardships," similar in kind and scope to

those codified in N.J.S.A. 10:5-3, if plaintiffs can show a

causal link between defendants' intrusion and these "personal

hardships."    As a threshold issue, plaintiffs must show in these

consolidated   cases   that     defendants'     actions   to   clandestinely

monitor    their   activities    in   a    gender-restricted    bathroom    is

subject to liability, because it is the type of intrusion that a

reasonable person would find to be highly offensive.

    Depending on the availability of compensatory damages, we

are equally satisfied that this same evidence may support an

award of punitive damages under the PDA's definition of "actual

malice."    N.J.S.A. 2A:15-5.10.

                                      B

    Plaintiffs also asserted invasion of privacy claims under

N.J.S.A. 2A:58D-1a, which provides:

            An actor who, without license or privilege
            to do so, photographs, films, videotapes,
            records, or otherwise reproduces in any
            manner, the image of another person whose
            intimate parts are exposed or who is engaged
            in an act of sexual penetration or sexual
            contact, without that person's consent and
            under circumstances in which a reasonable
            person would not expect to be observed,
            shall be liable to that person, who may
            bring a civil action in the Superior Court.

            [(Emphasis added).]




                                      32                            A-5397-10T2
    Alternatively,   plaintiffs    assert   a   claim   under   N.J.S.A.

2A:58D-1b, which provides:

         An actor who, without license or privilege
         to do so, discloses any photograph, film,
         videotape,    recording     or    any    other
         reproduction of the image of another person
         whose intimate parts are exposed or who is
         engaged in an act of sexual penetration or
         sexual   contact,   without    that   person's
         consent and under circumstances in which a
         reasonable person would not expect to be
         observed, shall be liable to that person,
         who may bring a civil action in the Superior
         Court.   For   purposes   of   this   section,
         "disclose" means sell, manufacture, give,
         provide,   lend,    trade,    mail,   deliver,
         transfer, publish, distribute, circulate,
         disseminate, present, exhibit, advertise or
         offer.

In terms of damages, the statute specifically authorizes the

court to award:

         (1) actual damages, but not less than
         liquidated damages computed at the rate of
         $1,000.00 for each violation of this act;

         (2) punitive damages upon proof of willful
         or reckless disregard of the law;

         (3) reasonable attorney's fees and other
         litigation costs reasonably incurred; and

         (4) such other      preliminary and equitable
         relief as the       court determines to be
         appropriate.

         [N.J.S.A. 2A:58D-1c.]

    In our view, the same record discussed at length during our

analysis of the evolution of the tort of invasion of privacy




                                  33                            A-5397-10T2
under the common law renders plaintiffs' cause of action                           under

this   statute     not    suitable     to      summary      judgment     disposition.

Without belaboring the issue, a reasonable jury could find that

defendants'     clandestine       video     surveillance        equipment      captured

images of plaintiffs performing personal grooming or biological

activities that exposed their intimate parts.

       In   response      to    plaintiffs'      interrogatories,             defendants

conceded    that    the       surveillance      operation       was    conceived      and

installed in response to "complaints of paper being stuffed down

toilets with resulting backup, overflow."                    A jury is entitled to

infer from this admission that the cameras' monitoring scope

included surveillance of the toilet stalls in order to identify

the    individual        or    individuals       engaging       in     this     alleged

vandalism.      This plausible finding is further corroborated by a

supplemental investigation report prepared by Fair Lawn Police

Detective Jeffrey Welsh, in which he stated: "the video monitor

displayed the 4 bathrooms showing the sink and bathroom stall

areas."

       Finally,    we     affirm      the      trial       court's     dismissal       of

plaintiffs' claims of intentional and negligent infliction of

emotional      distress.         To   make     out     a    prima     facie    case    of

intentional infliction of emotional distress, a plaintiff must

show   that:    (1)     the    defendant       acted       intentionally;       (2)   the




                                          34                                    A-5397-10T2
defendant's       conduct     was       "so    outrageous         in    character,            and   so

extreme    in     degree,     as       to   go    beyond       all     possible       bounds        of

decency,     and       to    be     regarded            as     atrocious,          and        utterly

intolerable       in    a   civilized          community;"           (3)     the    defendant's

actions proximately caused him/her emotional distress; and (4)

the     emotional      distress         was      "so     severe       that     no    reasonable

[person] could be expected to endure it."                              Segal v. Lynch, 413

N.J.    Super.     171,     191     (App.        Div.    2010)       (quoting       Buckley         v.

Trenton Saving Fund Soc., 111 N.J. 355, 366 (1988)).                                     Here, the

trial     court     correctly          found      the        record     does       not        contain

sufficient evidence for a rational jury to find a legal basis to

hold defendants accountable on this standard of liability.

       We reach a similar conclusion with respect to the tort of

negligent       infliction        of    emotional            distress.         This       tort      is

intended to compensate those who witness "shocking events that

do not occur in the daily lives of most people."                                         Frame v.

Kothari, 115 N.J. 638, 644 (1989).                       Events or circumstances that

have been found to present cognizable claims under this tort

include bystanders to accidents, Portee v. Jaffee, 84 N.J. 88

(1980); medical malpractice committed in the presence of the

plaintiff, Kothari, supra, 115 N.J. at 640; Strachan v. John F.

Kennedy     Memorial        Hospital,         109       N.J.    523     (1988);          or    cases

involving loss of a corpse, Muniz v. United Hospitals Medical




                                                 35                                       A-5397-10T2
Center   Presbyterian    Hospital,    153     N.J.    Super.    79     (App.    Div.

1977).     The    evidence    described       at     length    here     does     not

constitute this type of trauma.

     To summarize, we are satisfied that the evidence presented

is   sufficient     to    withstand        defendants'      summary      judgment

challenge on the claims grounded on the tort of invasion of

privacy.    We    thus   reverse   and     remand    this     matter    for    trial

before a jury on this issue.        The judgment of the trial court is

otherwise affirmed.      We do not retain jurisdiction.




                                      36                                  A-5397-10T2
