373 A.2d 1221 (Me. 1977), Nelson v. Maine Times

Citation373 A.2d 1221
Opinion JudgeARCHIBALD,
Party NameLorraine NELSON et al. v. Maine TIMES.
AttorneyKenneth C. Thompson, Old Town, for plaintiffs. Preti & Flaherty by David M. Cohen, Peter H. Rysman, Portland, for defendant.
Judge PanelBefore DUFRESNE, C. J., and WEATHERBEE, [ * ] POMEROY, WERNICK and ARCHIBALD, JJ.
Case DateJune 03, 1977
CourtSupreme Judicial Court of Maine

Page 1221

373 A.2d 1221 (Me. 1977)

Lorraine NELSON et al.

v.

Maine TIMES.

Supreme Judicial Court of Maine.

June 3, 1977

Page 1222

Kenneth C. Thompson, Old Town, for plaintiffs.

Preti & Flaherty by David M. Cohen, Peter H. Rysman, Portland, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, [*] POMEROY, WERNICK and ARCHIBALD, JJ.

ARCHIBALD, Justice.

The plaintiffs have appealed from a Superior Court ruling granting the defendant's motion to dismiss their complaint for 'failure to state a claim upon which relief can be granted'. Rule 12(b)(6), M.R.C.P.

We deny the appeals.

The plaintiffs, mother and minor son, are both described in the complaint as 'members of the Penobscot Tribe of Indians and reside on the Penobscot Tribal Indian Reservation, Indian Island, Old Town.'

The defendant is a newspaper published and circulated within the State of Maine, including the area of the State in which the plaintiffs live.

On February 16, 1973, the defendant published a picture of the infant plaintiff. This was done 'without his consent or authorization or the consent or authorization of his mother.' 1

The infant plaintiff contends that the publication of this photograph 'invaded the seclusion of his private life and exploited his likeness and his heritage as a member of the Penobscot Nation or Tribe of Indians.' He sought both compensatory and punitive damages.

Mrs. Nelson sought compensatory damages for her 'mental suffering and humiliation' since the 'unauthorized use of her son's picture . . . outraged and shocked her, she being a woman of ordinary sensibilities.'

We have frequently stated our reservations surrounding the use of 12(b)(6) motions. See Ace Ambulance Service, Inc. v. City of Augusta, 337 A.2d 661, 662 (Me.1975); Jones v. Billings, 289 A.2d 39, 40-41 (Me.1972); Richards v. Ellis, 233 A.2d 37, 38 (Me.1967). We would have serious doubts concerning the accuracy of the ruling, considering the theoretical amendability of the

Page 1223

infant plaintiff's complaint, were it not for the fact that at oral argument it was agreed by plaintiffs' counsel that the complaint could not be amended in any substantial manner to allege facts other than those recited therein. Furthermore, both counsel concurred that Rule 12(b)(6) was an appropriate vehicle to raise the issue sought to be determined. Neither brief suggests otherwise.

We now turn to the merits of the appeals.

In the recent case of Estate of Berthiaume v. Pratt, M.D., 365 A.2d 792, 795-96 (Me.1976), we recognized for the first time four kinds of interests, the invasion of which may give rise to a tort action for breach of another person's right to privacy. Although enumerated otherwise in Berthiaume, we restate these interests as set forth more recently in Restatement (Second), Torts § 652A at 376: 2

'(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.

(2) The right of privacy is invaded by

(a) unreasonable intrusion upon the seclusion of another, as stated in § 652B; or

(b) appropriation of the other's name or likeness, as stated in § 652C; or

(c) unreasonable publicity given to the other's private life, as stated in § 652D; or

(d) publicity that unreasonably places the other in a false light before the public, as stated in § 652E.'

We view the infant plaintiff's complaint as an attempt to state a cause of action under three of the four grounds set forth above, which we will discuss separately.

I

An Intrusion Upon the Seclusion of Another

Restatement (Second), Torts § 652B...

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