## Facts

- Wayne McLain, a Boise Cascade employee, injured his back at work and received medical treatment; his physician advised the employer he might be disabled up to 12 months.
- Boise obtained an independent medical evaluation indicating no objective back pathology and suggesting possible malingering; Boise then terminated McLain’s temporary disability payments.
- McLain sought reinstatement of benefits through a workers’ compensation hearing.
- Boise retained United Diversified Services, Inc. to conduct surveillance related to the benefits dispute.
- United’s investigators filmed McLain in daylight performing activities outside his home (e.g., yard work) that McLain later conceded were observable by neighbors or passersby.
- Some filming occurred from a neighbor’s barn; some was taken from a narrow strip at the border of McLain’s property, which the investigator claimed to have entered without knowing he was on McLain’s land.
- McLain learned of the filming only when the movie was shown at the workers’ compensation hearing; he testified he was not embarrassed by the depicted activities but was angry about being filmed without notice and about any entry onto his land.
- McLain sued Boise and United for (1) intrusion upon seclusion (invasion of privacy) and (2) trespass, seeking general and punitive damages on the privacy claim and nominal and punitive damages on trespass.
- The trial court dismissed the privacy claim by involuntary nonsuit, submitted trespass for nominal damages only, and the jury awarded $250 as nominal damages.

## Issues

1. Whether defendants’ surveillance and filming of McLain’s outdoor activities near his home constituted actionable intrusion upon seclusion.
2. Whether the evidence supported submitting punitive damages to the jury for the investigator’s alleged technical trespass onto McLain’s land.

## Decision

- The Oregon Supreme Court affirmed the involuntary nonsuit on the intrusion-upon-seclusion claim.
- The court held the surveillance was not a “highly offensive” intrusion because it involved daylight filming of outdoor activities visible to the public, without prying into the home or intimate matters.
- The court affirmed the trial court’s refusal to submit punitive damages on the trespass claim.
- The court left undisturbed the nominal-damages trespass verdict and affirmed the judgment.

## Legal Principles

- Intrusion upon seclusion requires (1) an intentional intrusion, physical or otherwise, (2) into another’s solitude, seclusion, or private affairs, (3) that would be highly offensive to a reasonable person.
- Observation or recording of activities exposed to public view generally does not constitute intrusion upon seclusion, even if the subject dislikes being watched.
- The “highly offensive” element is objective; a plaintiff’s anger or annoyance is insufficient without circumstances that would offend a reasonable person.
- A technical trespass supports nominal damages, but punitive damages require aggravating circumstances such as malice, reckless indifference, or other egregious misconduct.
- Inadvertent or non-malicious boundary crossing during otherwise lawful investigation is insufficient for punitive damages.

## Conclusion

The court held that daytime surveillance filming of a claimant’s publicly visible outdoor activities, undertaken for a workers’ compensation investigation, was not an actionable intrusion upon seclusion, and that an inadvertent or technical trespass without aggravated conduct supported only nominal damages, not punitive damages.


McLain v. Boise Cascade Corp., 533 P.2d 343 (Or. 1975)