Guest Post By: Ron Buretta, Ron R. Buretta & Associates, Inc.
I authored the following article for PI Magazine in February 2003. This involved surveillance in rural Illinois which resulted in a lawsuit against the investigators and their client. In October 2014 the issues of intrusion of seclusion and trespassing was litigated but this time in Missouri. That happens when you repeatedly trespass on multiple properties over four days. Our principal testified as an expert witness for the plaintiff on the more recent case. Those seven defendants included the investigators, the adjustor all the way down to the holding company owning the insurance company. At trial the plaintiff attorney pared down the defendants to the insurance company and the investigative agency.
A defense verdict was rendered in favor of the former. The jury awarded token actual damages for trespassing but followed with substantial punitive damages. Fortunately for the nationwide investigative agency, a high low settlement was reached prior to the verdict. All sides were bound by a confidentiality agreement regarding the settlement. Depositions were taken in four cities in Missouri, Illinois and Michigan. Despite the substantial time and expense involved, plaintiff attorney Jim Krispin told our office “I would do it again”. Make certain those conducting surveillance on your behalf know and follow the law as well as your guidelines. Be sure they are properly licensed, insured, experienced and not handing the case off to a sub-contractor whose main qualification is being the lowest bidder. Below is a reprint of the 2003 article which remains more relevant now than ever before.
In the 1970’s when video surveillance took root, it seemed to be “no holds barred.” Trespassing, pretext interviewing and the roping of represented bodily injury claimants were common. The feeling was that the end justified the means. This trend slowly but steadily shifted as surveillance companies became more professional, their clients became more conservative, regulation of the industry tightened and court rulings fine-tuned the framework of acceptable investigative techniques.
In twenty-eight years of investigating, I have had no firsthand knowledge of an investigator having been the subject of litigation regarding trespassing or invasion of privacy. That now has changed.
On July 8, 2002, a St. Louis television station aired a story about the settling of a lawsuit that had been filed in the U.S. District Court of Southern Illinois. It was alleged an invasion of privacy and trespass had occurred during the course of a video surveillance by an investigator. The following information was determined through extensive interviews with numerous individuals and agencies involved in the dispute.
The case began when a railroad engineer claimed serious back and neck injuries. Charles
Armbruster of the Lakin Law Firm represented the plaintiff. The firm has a formidable track record in representing the injured. They are located in Madison County Illinois which has a national reputation for generous juries.
The Union Pacific Railroad retained the St. Louis based investigative agency of Ridpath and Hoogstraaten. Lon Ridpath is retired from the Union Pacific Railroad where he served as a claims director. His partner, John Hoogstraaten, has decades of investigative experience. Their assignment was to conduct video surveillance on a claimant. The subject lived in Perry County Illinois on his farm of eighty acres surrounded by woods. Here is where the two accounts of the surveillance substantially differ.
In the course of the investigation, video was secured of the subject outside of his rural residence. According to the plaintiff’s attorney, Armbruster, the tapes showed the subject carrying tree limbs, carrying but not using a chainsaw and using a riding lawnmower. Armbruster became aware of the videotapes during the course of discovery. He contended that due to the heavily wooded terrain, a person could only have done the videotaping while actually on his client’s property.
“I made three trips to the farm and there was no way the video was taken from outside the property” claimed Armbruster. He ridiculed the idea that the video was taken through a funnel of trees as claimed by the investigators. He described the testimony of John Hoogstraaten as over two hundred and eighty answers of “I don’t know, I don’t remember or being vague.”
In June 2002, the Fifth District Court of Southern Illinois ruled that punitive damages could be sought against the investigators and their client. The two key issues were trespassing and invasion of privacy. Armbruster advanced the idea that an expectation of privacy was greater for a person at their residence when surrounded by woods on private property owned by the subject of the surveillance. Three weeks later, the case was settled for $135,000.00.
His client also was awarded $820,260.00 in the FELA case. The original judgment was $1,300,000.00 but was reduced as the plaintiff was held to be partially responsible for his injuries. The FELA judgment is now on appeal.
Lon Ridpath denied the investigators trespassed on the claimant’s property. He stated, “We didn’t do anything wrong. We had a plat map showing the boundaries. We knew where the property lines were. We never went onto his property.” He added “there was a lot of evidence in our favor that wasn’t admitted. Our insurance company got scared and settled.” He offered the opinion that the unfavorable jurisdiction also played a factor in the willingness of the Travelers Insurance Company to settle rather than go to trial.
Neither Armbruster nor Ridpath were aware of any other case involving private investigators being sued for invasion of privacy or trespassing. Veteran defense and plaintiff attorneys as well as longtime private investigators interviewed for this story also
were unaware of any prior cases.
Illinois law regarding criminal trespass to real property reads in part: (a) Whoever (1) knowingly and without lawful authority enters or remains within or on a building or (2) enters upon the land of another after receiving prior to such entry, notice from the owner or occupant that such entry is forbidden; or (3) remains upon the land or another, after receiving notice from the owner or occupant to depart, commits a class b misdemeanor (5/21-3 criminal trespass to real property).
A staff member of the Perry County Prosecuting Attorney’s Office stated that if land were posted with a sign, such as “keep out,” that would constitute notice that such entry is forbidden as defined by the criminal statute. The source was unaware of any cases in their county in which an investigator was criminally prosecuted for trespassing.
We sometimes hear of investigators talking about conducted surveillance on easements and right of ways to access private property. Speaking of Missouri and Illinois, this could be “fool’s gold”, if you rely on the easements to cover yourself.
Tom Donahue, now retired, spent his entire career working for Union Electric in St. Louis. He spent many years in the real estate department where part of his job was to obtain easements for the local electric companies in Missouri, Illinois and Iowa.
He explains that an easement is a contractual agreement between the property owner and the utility company. It provides for fair compensation for a landowner who how has limited use of the property on which the easement is located. The contract allows those who are a party to the agreement to access that portion of the property. There is no allowance for third parties, investigators or anyone else to enter the land in question.
We’ve heard of the investigators entering private land through bodies of water. In Missouri, a rural prosecutor added this caveat; “a person may travel through the property of another by a body of water provided it is navigable.” His definition of navigable is that the body of water was large enough to accommodate the use of a boat and motor. Prosecutor Tom Osborne, of Audrain County Missouri advised that, in Missouri, a person is guilty of trespassing in the second degree, which is an infraction punishable by a fine up to $200.00, if he or she enters your property without permission. The property does not have to be posted nor does advance notice have to be given to stay off the property. There is an absolute liability on the part of the person entering the property!
Has this changed the rules for what constitutes a reasonable expectation of privacy? The U.S. District Court seemed to think so when their ruling allowed for punitive damages. It is also going to depend on a case-by-case basis and may vary from state to state. What is legal in one jurisdiction may land you in civil court or jail in another.
In general, investigators can rely on the following being true in most jurisdictions:
*If you can’t motor through the majority of the stream, you are trespassing.
*If the land can be accessed legally by water, you are only allowed to walk the shore up to the normal high water mark.
*Don’t count on hand-me-down information in place of solid legal advice. Check your civil and criminal statutes to avoid problems.
*Remember, even if you are armed with a plat map and off the subject’s property, what do you do when that person happens to be leasing the land you are now on? Leasing of a neighboring farmland is common. It is often a handshake deal or involving a contract that is not a matter of public record.
*If you are tempted to trespass in connection with an investigation, read the terms of your liability insurance policy. Concentrate on the exclusion for criminal acts. Will your insurance carrier deny coverage if you are convicted of criminal trespassing?
*Even if the trespass would fall only onto the civil category, think of the consequences:
- You are faced with a deductible on your insurance coverage in defending yourself.
- Punitive damages, if awarded, are not covered by an insurance policy.
- Time preparing for depositions and court isn’t billable.
- The adverse publicity and stress of litigation has a negative impact on your business.
I have rarely lost an assignment from a reputable client by refusing to trespass or to engage in questionable investigative techniques. Most clients seem to appreciate a sold explanation of the pitfalls of conducting questionable investigations.
The Union Pacific case made the front page of the Missouri Lawyer’s Weekly. It will be widely known and publicized. You can count on the plaintiff bar paying great attention to the case. Opposing counsel will be combing testimony, surveillance tapes and reports for admissions of trespassing. This is especially true in areas not visible from public areas where there may now be a greater expectation of privacy.
The Illinois case will be publicized beyond the legal and investigative communities. Expect your clients to reaffirm their guidelines regarding trespassing and the expectation of privacy. We are in a competitive business. We face pressures from clients, our competition, the courts, those we investigate and their team of professionals. There are many day-to-day business pressures that are beyond our control. Don’t add to that list the matters you can control.
More About the Author, Ron R. Buretta & Associates, Inc.
Attached is an article I had published in PI Magazine 18 years ago regarding trespassing on a rural surveillance. Since that time I’ve testified as an expert witness on a Missouri case on the same subject.
In both the Illinois and Missouri cases, the courts were going to allow punitive damages. There is a lot of misinformation on what is permissible on foot surveillance. The courts have set the boundaries which are still not followed in some cases.