Busby v. Truswal Systems Corp.

• Decision Date: 15 September 1989
• Citation: 551 So.2d 322
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 1375, 7 IER Cases 1348 Jean BUSBY, et al., v. TRUSWAL SYSTEMS CORPORATION. 87-1095.
• Court: Alabama Supreme Court

Page 322

551 So.2d 322

59 Fair Empl.Prac.Cas. (BNA) 1375, 7 IER Cases 1348

Jean BUSBY, et al., v. TRUSWAL SYSTEMS CORPORATION.

87-1095.

Supreme Court of Alabama.

Sept. 15, 1989.

Richard W. Bell of Bell, Maples & Associates, Pelham, for appellants.

John W. Clark, Jr. of Clark & Scott, and Judy Whalen Evans of Harris, Evans & Downs, Birmingham, for appellee.

PER CURIAM.

This appeal is from a summary judgment for the defendant in an action alleging the torts of invasion of privacy and outrageous conduct. The principal issues are whether the action is barred by the exclusivity provisions of the Workmen's Compensation Act and whether the defendant employer can be held liable for the alleged intentional torts of its employee.

Jean Busby, Melanie Hale, Doris Money, and Bobbie Pitts brought this action against DuWayne Deaton and Truswal Systems Corporation, alleging sexual harassment, which they claim constituted outrageous conduct and an invasion of their right to privacy. The plaintiffs amended their complaint to add as additional plaintiffs Lisa Livingston and Sandra Clements. Hale subsequently withdrew as a party plaintiff. Deaton died on March 13, 1987, and was voluntarily dismissed as a defendant. The trial court entered summary judgment for Truswal.

The plaintiffs were employed by Truswal at its Birmingham plant; they, along with Hale, were all of the female employees at the plant, at which about a dozen people worked. Deaton was employed as the supervisor of the Birmingham plant. The plaintiffs allege that, during the time that Deaton was their supervisor, Deaton repeatedly subjected them to sexual harassment. The plaintiffs also allege that they alerted Deaton's immediate supervisor, Frank Fairley, of Deaton's conduct, but that Fairley did nothing to alleviate the situation. Fairley had been the plant supervisor in Birmingham until he was promoted to a position in Texas supervising seven Truswal plants, including the Birmingham plant.

The plaintiffs first argue that the trial court erred in granting Truswal's motion for summary judgment on their claim of invasion of the right to privacy.

Acts constituting an invasion of privacy have been set out by this Court:

" 'It is suggested in Prosser, Law of Torts 637-39 (2nd ed.1955), that the invasion of privacy tort consists in fact of four distinct wrongs, (1) "the intrusion upon the plaintiff's physical solitude or seclusion," (2) "publicity which violates the ordinary decencies," (3) "putting the plaintiff in a false but not necessarily defamatory position in the public eye," and (4) "the appropriation of some element of the plaintiff's personality for a commercial use." We think this analysis fundamentally consistent with our statement in [Smith v.] Doss, [251 Ala. 250, 37 So.2d 118 (1948) ] and reaffirmed in Abernathy [v. Thornton, 263 Ala. 496, 83 So.2d 235 (1955) ], adopted from 41 Am.Jur. 925, that the right of privacy is " 'the right of a person to be free from unwarranted publicity,' or 'the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.' " ' "

Cates v. Taylor, 428 So.2d 637, 639 (Ala.1983), quoting Norris v. Moskin Stores, Inc., 272 Ala. 174, 176-77, 132 So.2d 321, 323 (1961) (emphasis in Norris). See also Hogin v. Cottingham, 533 So.2d 525 (Ala.1988); Phillips v. Smalley Maintenance Services, Inc., 435 So.2d 705 (Ala.1983).

It is clear that the plaintiffs are basing their invasion of privacy claim on the first category of wrongs set forth in Cates. That is, they claim that there was a wrongful intrusion into their private activities.

This Court has held:

"The 'wrongful intrusion' prong of the tort of invasion of privacy has been defined as the 'intentional interference with another's interest in solitude or seclusion, either as to his person or to his private affairs or concerns.' W. Prosser & W. Keeton, The Law of Torts, p. 851 (5th ed.1984). '[T]here must be something in the nature of prying or intrusion' and 'the intrusion must be something which would be offensive or objectionable to a reasonable person. The thing into which there is intrusion or prying must be, and be entitled to be, private.' Id. at 855. Two primary factors are considered in 'determining whether or not an intrusion which effects access to private information is actionable. The first is the means used. The second is the defendant's purpose for obtaining the information.' Id. at 856."

Hogin, supra, at 531 (footnote omitted).

"The United States Supreme Court has specifically recognized 'marriage' and 'sexual' concerns as fundamental rights, entitled to privacy protection. Eisenstadt, Sheriff v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)." Phillips, supra, at 708.

The question, then, is whether there was an offensive or objectionable prying or intrusion into the plaintiffs' private affairs or concerns. Evidence was presented from which a jury could reasonably find that Deaton: (1) invited Busby and Money to swim in his pool in the nude with him; (2) told Busby that his hands were cold and asked if he could put them in her pockets to keep them warm; (3) told the plaintiffs that he would "put a stick on their machines" so they could masturbate while working; (4) said that he could perform intercourse as fast as one of the machines at the plant could operate; (5) said that he wished that the plaintiffs would come to work braless and wear less clothing; (6) told one of the plaintiffs that if she had not stayed up all night having sex she could do her work properly; (7) told one employee that if she would give him 30 minutes with her that he would fill her pants in nine months for her; (8) acted as if he was going to pinch one plaintiff's breasts with a pair of pliers and with his hands; (9) said that he should send one of the plaintiffs across the street to where a group of men were standing because she stayed sexually aroused all of the time; (10) told one of the plaintiffs that he was very tired and asked her if she would accompany him to the restroom and hold his penis while he urinated; (11) told one of the plaintiffs that her nipples were as large as another employee's entire breasts; (12) attempted to follow one of the plaintiffs into the restroom and when she asked him where he was going, said that he was going to help her; (13) followed one of the plaintiffs one night; (14) said that a table in his office had been damaged when one of the plaintiffs and a male co-employee had sex on top of it; (15) openly stared at the plaintiffs' sexual anatomy; (16) put his arm around the plaintiffs, grabbed their arms, and stroked their necks; and (17) made other lewd remarks and gestures to the plaintiffs. A jury could reasonably determine from this evidence that Deaton pried or intruded into the plaintiffs' sex lives in an offensive or objectionable manner and thereby invaded their right of privacy.

The plaintiffs also contend that the trial court erred in granting Truswal's motion for summary judgment on their outrage claim.

The tort of outrageous conduct was first recognized by this Court in American Road Service Co. v. Inmon, 394 So.2d 361 (Ala.1981), in which the Court held that "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress." Id. at 365. In order for a plaintiff to recover, the conduct of the defendant must be "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." Id. The deposition evidence presented by the plaintiffs presents evidence from which a jury could reasonably determine that Deaton's conduct rose to this level.

Although there was evidence tending to support the plaintiffs' claims against Deaton, he is deceased and was voluntarily dismissed by the plaintiffs from this action. The dispositive issues, therefore, relate to the plaintiffs' attempt to hold Truswal liable based on Deaton's conduct.

Truswal contends that, although there may be a question of fact as to whether an action would lie against Deaton, summary judgment in Truswal's favor was nevertheless appropriate because, it argues, the action is barred by the exclusivity provisions of the Alabama Workmen's Compensation Act.

The exclusivity provisions of the Act are found at Ala.Code 1975, §§ 25-5-52 and 25-5-53. Section 25-5-52 provides:

"No employee of any employer subject to this article, nor the personal representative, surviving spouse or next of kin of any such employee shall have any right to any other method, form or amount of compensation or damages for any injury or death occasioned by any accident proximately resulting from and while engaged in the actual performance of the duties of his employment and from a cause originating in such employment or determination thereof other than as provided in this article."

Section 25-5-53 provides, in part:

"The rights and remedies herein granted to an employee shall exclude all other rights and remedies of said employee, his personal representative, parent, dependents or next of kin, at common law, by statute or otherwise on account of said injury, loss of services or death. Except as provided in this article and article 2, as the case may be, of this chapter, no employer included within the terms of this chapter shall be civilly liable for any personal injury or death of any workman who is an employee of the employer and whose injury or death is due to an accident while engaged in the...