Bodah v. Lakeville Motor Express, Inc., C5-02-276.

• Decision Date: 26 June 2003
• Docket Number: No. C5-02-276.,C5-02-276.
• Citation: 663 N.W.2d 550
• Parties: Sandra BODAH, et al., on their own behalf and on behalf of all others similarly situated, Respondents, v. LAKEVILLE MOTOR EXPRESS, INC., Petitioner, Appellant.
• Court: Minnesota Supreme Court

663 N.W.2d 550

Sandra BODAH, et al., on their own behalf and on behalf of all others similarly situated, Respondents, v. LAKEVILLE MOTOR EXPRESS, INC., Petitioner, Appellant.

No. C5-02-276.

Supreme Court of Minnesota.

June 26, 2003.

Heard, considered, and decided by the court en banc.

OPINION

ANDERSON, RUSSELL A., Justice.

In this case, the court of appeals reversed the district court's order dismissing, on the pleadings, the complaint of respondents Sandra Bodah, Wayne Senne, John Tonsager, and Mark Urick (respondents). On review, we consider an issue of first impression: whether allegations in the complaint—that appellant Lakeville Motor Express, Inc.'s (LME) dissemination by facsimile of 204 employee names and social security numbers to 16 related or associated terminal managers in six states and "[t]hat upon information and belief the private information has not been redacted or erased and is still being shared or is accessible in general"—constitute the requisite "publicity" under Minnesota law to support a claim for publication of private facts, an invasion of privacy tort. We adopt the definition of "publicity" from the Restatement (Second) of Torts § 652D cmt. a (1977). Further, we hold that the complaint does not allege the requisite "publicity" to support a claim for publication of private facts. We reverse.

The facts recited in the pleadings may be summarized as follows.¹ LME, a trucking company based in Minnesota, transports shipments throughout the upper Midwest, including Minnesota, Illinois, Iowa, North Dakota, South Dakota, and Wisconsin. In distributing freight, LME utilizes trucking terminals that are either owned by LME or its agents or are owned by independent trucking companies.

On January 4, 2001, LME Safety Director William Lowell Frame (Frame) sent a facsimile transmission to the terminal managers of 16 freight terminals. The cover sheet was addressed to "Terminal Managers," not to named individuals, and stated that the purpose of the fax was to allow LME to "keep computer records for terminal accidents-injuries etc." The cover sheet requested that the terminal managers "[p]lease review [the] list for your terminals[;] add or delete accordingly." Attached to the cover sheet was a five-page list of the names and social security numbers of 204 LME employees.²

Shortly after LME disseminated the list, head Union Steward John Tonsager confronted Frame and LME President Peter Martin (Martin) about the dissemination of sensitive employee information and expressed his concern about identity theft. On May 1, 2001, Martin sent a letter to LME employees notifying them of the January 4 transmission. In the letter, Martin apologized for LME's mistake in sending the list to the other terminals and reported that the terminal managers were instructed to destroy or return the list immediately. Martin indicated that his instructions had been followed and that, as far as he knew, the terminal managers had not shared the information with anyone.

On or about September 6, 2001, respondents filed a class action lawsuit on behalf of themselves and all class members alleging that LME's dissemination of their social security numbers to the 16 terminal managers constituted an invasion of their right to privacy.

LME moved for dismissal of this action under Minn. R. Civ. P. 12.02(e) for failure to state a claim upon which relief may be granted. The district court determined that the dissemination did not constitute "publicity" under a claim for publication of private facts and granted LME's motion to dismiss. The court of appeals reversed and remanded, holding that "[a]n actionable situation requires a level of publication that unreasonably exposes the appellant to significant risk of loss under all the circumstances," and concluding that the appropriate consideration includes the nature of the private fact and the harm to which the plaintiff is exposed as a result of the dissemination as well as the breadth of disclosure. Bodah v. Lakeville Motor Express, Inc., 649 N.W.2d 859, 866 (Minn. App.2002).

In reviewing cases involving dismissal for failure to state a claim upon which relief can be granted pursuant to Rule 12.02(e), the question before the appellate court is whether the complaint sets forth a legally sufficient claim for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997). The standard of review is therefore de novo. See Frost-Benco Elec. Ass'n v. Minn. Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn.1984) ("[A]n appellate court need not give deference to a trial court's decision on a legal issue."). The reviewing court must consider only the facts alleged in the complaint, accepting those facts as true and must construe all reasonable inferences in favor of the nonmoving party. Marquette Nat'l Bank v. Norris, 270 N.W.2d 290, 292 (Minn. 1978).

In Lake v. Wal-Mart Stores, Inc., this court adopted three separate causes of action which are generally referred to as the tort of invasion of privacy: intrusion of seclusion, appropriation of a name or likeness of another, and publication of private facts. 582 N.W.2d 231, 236 (Minn.1998). The rationale behind recognizing the tort of invasion of privacy is that "[t]he right to privacy is an integral part of our humanity; one has a public persona, exposed and active, and a private persona, guarded and preserved. The heart of our liberty is choosing which parts of our lives shall become public and which parts we shall hold close." Id. at 235. According to Lake, to state a claim for publication of private facts, a plaintiff must demonstrate that one "`gives publicity to a matter concerning the private life of another * * * if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.'" Id. at 233 (quoting Restatement (Second) of Torts, § 652D). The Lake court did not define "publicity." See C.L.D. v. Wal-Mart Stores, Inc., 79 F.Supp.2d 1080, 1083 (D.Minn.1999) ("[R]elevant Minnesota cases offer no guidance regarding what facts an invasion of privacy tort claimant must allege in order to satisfy the burden of showing that `publicity' or `publication' of private information has occurred. * * * Lake thus conferred upon other courts the task of defining the contours of these newly recognized causes of action.").

Under the Restatement, "`[p]ublicity' * * * means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge."³ Restatement (Second) of Torts § 652D cmt. a. The Restatement distinguishes "publicity" for purposes of invasion of privacy from "publication" for defamation:

"Publicity," as it is used in this Section, differs from "publication," as that term is used in § 577 in connection with liability for defamation. "Publication," in that sense, is a word of art, which includes any communication by the defendant to a third person. * * * The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public.

Thus it is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiff's private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity within the meaning of the term as it is used in this Section. The distinction, in other words, is one between private and public communication.

Id. For example, as the Restatement illustrates, the posting of a statement in a shop window, where it is read by passers-by, that a customer owes a debt, constitutes "publicity" under the Restatement. Id. at cmt. a, illus. 2.; see also Purdy v. Burlington N. & Santa Fe Ry. Co., No. 98-833, slip op. at 6 (D.Minn. Mar. 28, 2000) (concluding that if Purdy were to publish 800 employees' salaries and social security numbers on the Internet, the employees would likely succeed on an invasion of privacy claim); Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 968, 971 (1927) (exemplifying "publicity" under the Restatement— posting a 5-by 8-foot notice calling attention to a customer's overdue account in a show window of an automobile garage constitutes publicity); Biederman's of Springfield, Inc. v. Wright, 322 S.W.2d 892, 898 (Mo.1959) (holding that loud declarations of indebtedness in a public restaurant constituted "publicity"). By contrast, where defendants threatened to disseminate a "Dead-Beat Parent" poster to the public at large but in fact only delivered the poster to the plaintiff's employer and a few close relatives, distribution to this "handful of people" was insufficient to constitute "publicity." Jones v. United States Child Support Recovery, 961 F.Supp. 1518, 1520-21 (D.Utah 1997); see also Hendry v. Conner, 303 Minn. 317, 319, 226 N.W.2d 921, 922-23 (1975) (concluding, pre-Lake, that statement made by hospital credit department employee in loud voice in the presence of people in waiting room that plaintiff's child could not be admitted to the hospital unless an outstanding bill was paid would not constitute "publicity").

LME maintains that the dissemination by fax of a list of 204 employee names and social security numbers to 16 associated or related terminal managers in six states and the allegation that the private information is being shared or is accessible in general does not constitute "publicity" to support an invasion of privacy claim. Specifically, because the complaint does not allege that the dissemination of the numbers was to the public at large or that the disclosure involved so many ...