Rugg v. McCarty
| Citation | 173 Colo. 170,476 P.2d 753 |
| Decision Date | 16 November 1970 |
| Docket Number | No. 22817,22817 |
| Parties | Shirley Jean RUGG, Plaintiff in Error, v. G. McCARTY and Nationwide Finance Company of Lakewood, a Colorado corporation, Defendants in Error. |
| Court | Colorado Supreme Court |
Williams, Taussig & Trine, Morris W. Sandstead, Jr., Boulder, for plaintiff in error.
Hellerstein & Hellerstein, F. J. Manning, Denver, for defendants in error.
Shirley Jean Rugg, the plaintiff in error, is here by writ of error seeking reversal of an order of the trial court dismissing her complaint against G. McCarty and Nationwide Finance Company of Lakewood, a Colorado corporation, defendants in error, for failure to state a claim upon which relief could be granted. Rugg had sought relief from these defendants based on three theories: first, an invasion of the right of privacy; second, an intentional or reckless infliction of emotional distress without impact (without physical contact); and, third, unlawful interference with an employment contract. Rugg asserts the court erred in dismissing the complaint as it related to the claims based on invasion of privacy and intentional or reckless infliction of emotional distress without impact. No error is here predicated on the court's dismissal as it related to plaintiff's claim based on unlawful interference with her employment contract.
We disagree with the court's order of dismissal, and therefore reverse.
The complaint alleged that on November 9, 1965, Rugg enrolled for a one-year membership in a health studio operated by Universal Figure Form of Boulder, Inc., for a fee of $180 which she paid by signing a promissory note payable to Universal. Universal sold the note to Nationwide Finance. Rugg claimed that during the first exercise lesson she sustained an injury which she attributed to the negligence of Universal's instructor; that the injury and her resulting condition progressively worsened; and that she was forced to quit her employment and was hospitalized in May of 1966. She sought damages from Universal based on negligence. Although Universal was a defendant in the trial court, the motion to dismiss was not directed to Rugg's claim of negligence against Universal, which is not a party to this writ of error.
Rugg alleged that it became impossible because of her physical condition to further engage in the exercise sessions, and she advised Universal and Nationwide Finance of this situation and sought to rescind the contract. Nationwide refused and she continued to pay as long as she was able and reduced the balance on the note to $44.50.
The critical allegations of Rugg's complaint charged that McCarty and Nationwide Repeatedly harassed her with numerous telephone calls and letters demanding payment, notwithstanding her explanation of her distressed circumstances and her promise to pay as soon as possible; that a letter was directed to her employer stating she was Not living up to her obligations in a satisfactory manner and inquiring concerning how many garnishments would be tolerated, which communication was intended to harass and pressure her; that Nationwide did not have a judgment against plaintiff and knew or should have known that it could not garnishee her wages, execute or otherwise attempt collection from her employer; that the acts of the defendants were done Wilfully and wantonly in disregard of her rights; and that the acts of defendants were done Intentionally with the Intention of causing plaintiff to suffer mental anguish, embarrassment, humiliation and extreme mental suffering.
The trial court in dismissing the complaint found that the grounds for relief relied upon 'considered either individually or collectively' did not sufficiently state a claim for relief, relying upon the decision in Tollefson v. Safeway Stores, 142 Colo. 442, 351 P.2d 274. It is not clear from the record whether the trial court was disinclined to recognize the theories of tort upon which plaintiff predicated her claims, or whether the complaint was dismissed for want of a sufficient factual statement under the theories relied upon.
In Tollefson the Court stated:
In McCreery v. Miller's Grocerteria Co., 99 Colo. 499, 64 P.2d 803, the Court alluded to the doctrine of right of privacy but declined to commit Colorado to recognition of the doctrine. We are urged to specifically recognize the theory of tortious conduct designated as the invasion of the right of privacy. We now do so, noting that our general assembly gave legislative recognition of the right of privacy by the enactment of 1967 Perm.Supp., C.R.S.1963, 40--4--33, in connection with the wiretapping and eavesdropping statute, which provides: 'There exists in the state of Colorado a right of privacy, an invasion of which may be compensated by damages.'
The historical development of the right of privacy was first extensively discussed in the famous law review article written in 1890 by Samuel D. Warren and Louis D. Brandeis, entitled 'The Right of Privacy,' 4 Harv.L.Rev. 193. Professor Prosser comments: 'Although there was at first some hesitation, a host of other legal writers have taken up the theme, and no other tort has received such an outpouring of comment in advocacy of its bare existence.' W. Prosser, Law of Torts § 112 (3d ed. 1964). Among the multitude of treatises discussing this subject, See: M. Ernst & A. Schwartz, Privacy: The Right to Be Let Alone (1st ed. 1962); S. Hofstader & G. Horowitz, The Right of Privacy (1964); F. Harper & F. James, Jr., The Law of Torts (1956); 77 C.J.S. Right of Privacy; 41 Am.Jur. Privacy.
We are now advised that at least thirty-two jurisdictions have recognized the tort of invasion of right of privacy. 1 Limited statutory recognition of the doctrine exists in three other states, New York, Utah and Virginia.
We do not attempt to comprehensively define the right of privacy, nor to categorize the character of all invasions which may constitute a violation of such right. We merely observe that considerable precedent exists in the area of oppressive conduct by a creditor in connection with his efforts to collect from his debtor. Santiesteban v. Goodyear Tire and Rubber Co., 5 Cir., 306 F.2d 9; Cunningham v. Securities Invest. Co. of St. Louis, 5 Cir., 278...
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...coworkers poked holes in ceiling of women’s bathroom and viewed plaintiffs disrobing and using restroom facilities); Rugg v. McCarty , 173 Colo. 170, 476 P.2d 753 (1970) (recognizing repeated and harassing telephone calls as intrusion upon seclusion); see generally W. Prosser & W. Keeton, T......