We all know the song….
He sees you when you’re sleeping,
He knows when you’re awake,
He know if you have been bad or good, so be good for goodness sake…
Could a Plaintiff sue Santa Claus for watching them sleep and all other aspects of their daily life?
What other liability is Father Christmas personally incurring as he decides who is naughty or nice?
For example, how does Santa know if you have been bad or good?
Are there elves remotely forensically imaging computer hard drives and using computer-assisted review to recognize patterns of nice and naughty conduct?
Does Santa have another team of elves running keyword searches over the billions of text messages sent each year? Could a Plaintiff sue Santa Claus for violations of the Stored Communication Act?
Let’s review the possible Torts and Crimes committed annually by Santa Claus.
Invasion of Privacy
Privacy is essentially the right to be left alone. While the word “privacy” does not appear in the US Constitution, there are many common law and statutory remedies for invading someone’s private life. California went so far as to even write a right of privacy into the California Constitution, which states:
All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
Cal Const, Art. I § 1.
Courts have held to be spied upon while in bed is an invasion of privacy. See, Oziel v. Superior Court, 223 Cal. App. 3d 1284, 1301 (Cal. App. 2d Dist. 1990) & Commonwealth v. Kean, 382 Pa. Super. 587 (Pa. Super. Ct. 1989).
The tort of the intrusion into private affairs requires a Plaintiff prove the following in California against Santa Claus:
John Doe claims that Santa Claus violated his right to privacy. To establish this claim, John Doe must prove all of the following:
1. That John Doe had a reasonable expectation of privacy in sleeping at home in his bed;
2. That Santa Claus intentionally intruded in John Doe’s protected activity by watching John Doe 24 hours a day since Doe’s birth;
3. That Santa Claus’s intrusion would be highly offensive to a reasonable person;
4. That John Doe was harmed; and
5. That Santa Claus’s conduct was a substantial factor in causing John Doe’s harm.
In deciding whether John Doe had a reasonable expectation of privacy in sleeping at home in his bed, you should consider, among other factors, the following:
(a) The identity of Santa Claus;
(b) The extent to which other persons had access to John Doe’s bedroom while Doe slept and could see or hear John Doe; and
(c) The means by which the intrusion occurred.
In deciding whether an intrusion is highly offensive to a reasonable person, you should consider, among other factors, the following:
(a) The extent of the intrusion;
(b) Santa Claus’s motives and goals; and
(c) The setting in which the intrusion occurred.
1-18 California Forms of Jury Instruction 1800
The Trial of Santa Claus for violating John Doe’s privacy rights would raise many interesting questions that would focus on Santa Claus’s abilities to watch others. How does Santa see you when you are sleeping? Does Santa focus on specific individuals to check on behavior? Or, is it something Santa cannot himself focus, like hearing the roar of a crowd at a baseball stadium, instead of one conversation? Simply put, does Santa simply know when everyone is sleeping vs setting up a global camera network to spy on people?
What are John Doe’s damages to Santa knowing when Doe is sleeping? How is Doe harmed by Santa being aware of Doe’s sleep habits? Santa is not publishing Doe’s activities, but merely rewarding good conduct annually with a present under the Christmas Tree. With that said, there is still a creepy factor to knowing a man is watching Doe sleep.
Negligent Infliction of Emotional Distress
Generally, to prove this tort, a party must establish the following:
(2) Resulting in physical harm manifested by objective symptomology, and
(3) A reasonable person would have suffered emotional distress under the circumstances.
Kunesch v. Noyes, 29 Mass. L. Rep. 625 (2012).
John Doe would first have to demonstrate negligence on the part of Santa Claus and that Doe suffered physical harm that a reasonable person would also suffer.
Doe cannot simply say he suffered from stress at a deposition. Doe ideally would have physical harm, such as loss of sleep, ulcers, and related harm that can either be confirmed by a medical professional or reported to others to verify the harm.
Trespass of the Bells
Santa Claus is trespassing in homes across the planet. Under California Penal Code section 602(m), a person commits a misdemeanor by “Entering and occupying real property or structures of any kind without the consent of the owner, the owner’s agent, or the person in lawful possession.”
A very good argument can be made that Santa is not trespassing, because he is invited into homes for gifts by the homeowners leaving cookies and milk out for him.
If Santa is invited into homes with the cookie invitation, he technically is an “invitee.” As an invitee, the homeowner would have a duty to Santa Claus to inspect the property for anything dangerous and warn Santa of any dangers (See, Black’s Law Dictionary iPad App). As such, if someone is leaving out cookies and milk, also starting a large fire or leaving toys out as a trip hazard would put Santa at risk of injury.
The Naughty or Nice List
However, if people also leave cookies and milk out to invite Santa Claus into their homes, any claims for invasion of privacy are lost by the implied social contract to be nice in exchanged for gifts.