Emotional Distress

I was in a changing room in a small retail store. When I looked up in the changing room, I saw a camera looking down at the two changing rooms. I immediately confronted the store owner about the camera. The store owner said the camera was necessary to prevent customers from shoplifting. Customers would try on store items underneath their clothes and steal merchandise. Despite the explanation, I still do not think this is right. Is there any sort of claim I can bring against the store?

In two prior posts (one dealing with a terrible taxi ride and the second dealing with an update in the law used in the prior case), the posts observed that New York does not generally recognize a negligent infliction of emotional distress claim. To bring an emotional distress claim, a person must be in the “zone of danger” of the injured party. Then it is possible to bring a claim for emotional distress. (An example of this case would be watching a close relative when they are hit by a car. The close relative has their own separate claim for negligent infliction of emotional distress.)

Loss of Sepulcher

However, those posts did not tell the whole story. There are two claims for emotional distress which have nothing to do with “zone of danger.” One claim is for loss of sepulcher, the second claim is for the type of invasion of privacy described in the question. (Loss of sepulcher is a claim against a hospital, funeral home, or cemetery for mishandling of a corpse of a close family member.)

Invasion of Privacy

The second claim for invasion of privacy is based on a violation of General Business Law § 395-b(2). This law prohibits the installation of cameras in “any fitting room, restroom, toilet, bathroom, washroom, shower, or any room assigned to guests or patrons in a motel, hotel or inn.” Violation of this law may serve as a basis for a cause of action for the negligent and reckless infliction of emotional distress, Salamone v Oak Park Marina, Inc., 259 AD2d 987 (4th Dept 1999); Dana v Oak Park Marina, Inc., 230 AD2d 204 (4th Dept 1997). A plaintiff need not prove that they were in fact videotaped to recover because the duty is breached by the installation of the video camera.

That means that the plaintiff at trial will not have to produce embarrassing videos for a jury to review. The entire case would be to (1) the existence of the camera and (2) the shock and horror one felt knowing about the camera in its sensitive location. So you do have a claim against the clothing store.