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Kentucky Electric Steel v. May9/1/1995
OPINION REVERSING AND REMANDING
JOHNSON, JUDGE: Kentucky Electric Steel appeals from a jury verdict and order entered in the Boyd Circuit Court in favor of Ronald and Jennifer May. We reverse and remand for entry of judgment notwithstanding the verdict.
In their case below, the appellees, husband and wife, alleged theories of recovery under negligence, invasion of privacy and tort of outrage (intentional infliction of emotional distress). Their claim arose out of the appellant's hiring, supervising and retaining a private investigative firm to conduct surveillance of their activities.
Mr. May was employed by Kentucky Electric Steel for several years in various capacities involving heavy manual labor until September 19, 1990, when he reported a work injury to his back. He was off work for a period of time and received temporary total workers' compensation disability benefits until July 8, 1991, after which he was placed on light-work assignment.
After being placed on the light-work assignment, Mr. May missed some days of work. Based upon information that Mr. May was engaged in other work installing car stereos, Jim Franz, safety director at Kentucky Electric Steel, retained the services of Criminal & Civil Investigations, Inc. (CCI), to conduct a surveillance of Mr. May. Franz did not inform CCI of the purpose of the investigation at the time, but he later testified that the purpose was to assist in the preparation of a defense of a workers' compensation claim which Mr. May might bring. CCI was directed to observe the Mays' home in Ashland and report back on activities observed there.
The surveillance began on July 19, 1991, and lasted approximately three to four months. During this period, investigators from CCI conducted what was termed a standard "plain view" surveillance of Mr. May by observing and videotaping his activities from a van in the public roadway, talking with neighbors and occasionally following him. On one occasion, an investigator followed Mr. May and two friends across the state line into West Virginia where the three attended a Marshall University football game. On two occasions early in the surveillance when it was not possible to determine Mr. May's whereabouts, Mrs. May's car was followed when she left home. The stated reason for this surveillance was that Mrs. May might lead the investigators to her husband. CCI termed the following of the Mays' vehicles as "mobile surveillance" and utilized different vehicles for the task, at least one of which appears to have been fitted with a video camera. Reports of the Mays' activity were prepared regularly and sent to Jim Franz along with copies of any videotapes made. The videotapes of the May home depicted the comings and goings of the Mays and their two-year-old child and also often depicted family and friends who visited the home since there was an automatic triggering device on the camera which started taping whenever there was movement in the Mays' yard. Among the activities observed by the investigators was Mr. May "popping wheelies" while riding a motorcycle around the yard. In another scene, to which the Mays would later take great offense, their two-year-old son is briefly shown just inside the glass storm door of their home. At no time did the investigators trespass upon the Mays' property, rather all surveillance work was done either from the public street or sidewalk, or, with permission, from the property of the Mays' neighbors. The record does not indicate that the investigators ever made physical contact, approached, or engaged in conversation with either of the Mays. A neighbor telephoned the Mays and informed them that investigators were asking questions about Mr. May
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