Reed v. Toyota Motor Credit Corp.

301 Or.App. 825

459 P.3d 253

Erik Loyal REED, Plaintiff-Appellant,

v.TOYOTA MOTOR CREDIT CORPORATION and Toyota Financial Services, foreign corporations, and Capitol Toyota, an Oregon corporation, Defendants-Respondents.

A164222

Court of Appeals of Oregon.

Argued and submitted May 31, 2018.

January 23, 2020

George W. Kelly, Eugene, argued the cause and filed the briefs for appellant.

Paul W. Cane, Jr., argued the cause for respondents Toyota Motor Credit Corporation and Toyota Financial Services. Also on the brief were Paul Hastings LLP, Elizabeth A. Falcone, and Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Michael B. Merchant, Portland, argued the cause for respondent Capitol Toyota. Also on the brief was Black Helterline LLP.

Before Ortega, Presiding Judge, and Powers, Judge, and Mooney, Judge.^*

MOONEY, J.

Plaintiff and defendants Toyota Motor Credit Corporation/Toyota Financial Services (TFS)¹ entered into an employment separation agreement that, among other things, allowed plaintiff to retain the TFS truck he was already using. TFS installed a global positioning system (GPS) tracking device onto the truck without plaintiff’s knowledge or consent. When plaintiff discovered the GPS device on the truck, he filed this claim for invasion of privacy. The trial court granted summary judgment in favor of TFS after concluding that, despite having installed the device, TFS did not actually access or monitor the data collected by it and, therefore, there was no invasion of privacy. The court granted summary judgment in favor of defendant Capitol Toyota (Capitol) because it concluded Capitol had nothing to do with the installation of the GPS device. We affirm as to Capitol and reverse and remand for further proceedings as to TFS.

Because this case is before us on the grant of summary judgment to defendants, we view the record in the light most favorable to plaintiff to determine whether there are any genuine issues of material fact and, if not, whether defendants are entitled to judgment as a matter of law. ORCP 47 C; Brown v. Guard Publishing Co. , 267 Or. App. 552, 562, 341 P.3d 145 (2014). Under ORCP 47 C, no genuine issue as to a material fact exists if no objectively reasonable juror could return a verdict for the party opposing the motion—here, plaintiff—on the matter that is the subject of the motion.

We state the facts in accordance with that standard. TFS is part of the worldwide financial services operations for Toyota Motor Corporation, providing consumer loans for purchases of Toyota vehicles with branch offices throughout the United States. Plaintiff worked for TFS as an area sales manager in Lake Oswego, Oregon. His immediate supervisor was the office manager, Estes. The human resources (HR) department is in California.

In October 2012, a TFS employee reported that plaintiff was wearing a "large, dagger-style blade" at his belt line while at work. That same employee also provided HR with an online product review that plaintiff wrote about a similar "military-style serrated dagger" in which plaintiff commented that he tried wearing the belt but that it "did not wear well because of the length and the constant up and down of working in an office." The employee reported that he and other employees were concerned for their safety. Toyota has a policy that expressly prohibits employees from possessing weapons, including knives and daggers, on TFS property. Plaintiff disputes that he wore the dagger to work indicating instead that it was a "trainer" he wore to see how it felt while moving throughout the day.

Given the employee concerns as well as information from Estes that he "sensed increasing hostility" from plaintiff during performance reviews, TFS decided to place plaintiff on administrative leave in order to investigate the safety concerns. HR personnel were not able to immediately reach plaintiff to advise him of the decision and so they worked with the TFS IT team to locate plaintiff’s company-owned iPad. They were able to watch the iPad on a map as it exited the freeway and travelled to a point outside Estes’s house. According to Estes, there was no reason for plaintiff to be in front of his home. Later that morning, HR reached plaintiff and informed him of the investigation and that he was being placed on leave.

The subsequent investigation included nine interviews with plaintiff’s coworkers. Those interviewed disclosed additional concerns about plaintiff, ranging from comments that he was "odd" and a "loner" to reports that he posted online about buying a bulletproof vest and that he watched videos of bullet making and shooting firearms on his work computer in front of his colleagues. Additionally, an employee emailed an HR manager that "I can’t help but think this could become one of those classic cases when someone goes over the edge, and later everyone says things like ... well he was kind of odd, he was a loner, he was a real gun nut, etc. So, I do want to go on the record by expressing my concerns in writing, should something ever happen in the future." (Ellipses in original.)

TFS terminated plaintiff’s employment and decided to pursue a separation agreement with plaintiff to "reduce the risk that [plaintiff] would become violent or otherwise lash out at any of TFS’s personnel." After several months of negotiations, the separation agreement was executed in March 2013.

As part of the separation agreement, TFS agreed to lease to plaintiff the Toyota Tundra that he had been using during his employment "for five years without cost to [plaintiff], after which the vehicle will be given to" plaintiff, subject to certain conditions. One of the relevant conditions required plaintiff to have the Tundra taken to Capitol for maintenance and a safety inspection. Despite that condition, plaintiff took the Tundra to a different Toyota dealership for an oil change and safety inspection. When he submitted a "repair order" from that service to demonstrate that the safety inspection had been completed, TFS informed him "that they would not honor the Settlement unless [plaintiff] took the truck to Capitol Toyota immediately." Plaintiff then took the truck to Capitol, where he was required to leave it for two days.

While the truck was at Capitol, Toyota’s corporate security office, at the direction of TFS, installed a GPS device into the Tundra without plaintiff’s permission or knowledge. The security office set up "geo-fences" across the public roadways leading to two locations that TFS considered to be at risk: TFS’s Lake Oswego office and the Estes family home.² According to the manager of Toyota’s corporate security office,

"the device was programmed to communicate only with Toyota’s Corporate Security Office in Southern California. There, the geo-fence system was set up to trigger an alarm if and only if the Tundra crossed one of the geo-fence lines, which were placed to provide sufficient warning time to the Lake Oswego office and the Estes family in the event [plaintiff] drove to either location. *** If that happened, a member of the security team was to contact those locations, and log-on to the system to begin monitoring [plaintiff’s] location. [An additional geo-fence] was set-up *** that would sound the alarm if the Tundra was nearing in on the targets."

(Emphasis omitted.) After the device was installed and other work was completed on the Tundra, the truck was returned to plaintiff. He was not told about the installation of the GPS device or the geo-fences.

About one month later, plaintiff discovered the GPS device when he noticed wires hanging behind the gas and brake pedals of his truck. Eventually, plaintiff learned that the device had been installed by TFS, and he subsequently filed this case against TFS and Capitol for invasion of privacy.

Each defendant filed a motion for summary judgment, with Capitol primarily relying upon the points and authorities and supporting documentation submitted by TFS. TFS admitted that the GPS device was installed by its agents at its direction and no evidence was submitted by any party to show that Capitol had anything to do with the GPS device. TFS also produced evidence that the GPS device never triggered the alarm. "That could have been because [plaintiff] did not drive the Tundra to the exact spots on the public roadways that would have triggered the alarm. It [also] could have been because the geo-fence was not working properly." The trial court granted Capitol’s motion because it concluded that there was no evidence "to show that they’re involved in [the case] whatsoever." The trial court granted TFS’s motion because it found that plaintiff "was never monitored. He was trespassed upon—his vehicle—but he was never monitored, so I don’t know how there is a private place to be intruded upon."

Plaintiff appeals the general judgment of dismissal, assigning error to the trial court’s decision to grant the summary judgment motions. We begin our review with the following historical and legal perspective on the nature of the claim presented.

Invasion of privacy is a tort; that is to say, a civil wrong. Oregon has long recognized a common-law cause of action for invasion of privacy, on four different theories, all of which protect the right of a person "to be let alone." Mauri v. Smith , 324 Or. 476, 482, 929 P.2d 307 (1996). The right "to be let alone" is not a new legal concept. In 1888, Thomas Cooley wrote that "[t]he right to one’s person may be said to be a right of complete immunity: to be let alone." Thomas M. Cooley, A Treatise on the Law of Torts or the Wrongs Which Arise Independent of Contract 29 (2d ed. 1888).

Louis Brandeis and Samuel Warren referred to Cooley’s "right to be let alone" when they explained that the tort of "invasion of privacy" derives from, and protects, the right to be let alone. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy , 4 Harv L Rev 193, 195 (1890). They wrote in response to "[r]ecent inventions and business methods [that] call...