Cannady v. St. Vincent Infirmary Med. Ctr.

• Decision Date: 08 November 2012
• Docket Number: No. 11–1298.,11–1298.
• Parties: Patricia CANNADY, Individually and as Administratrix of The Estate of Anne Pressly, Deceased, Appellant v. ST. VINCENT INFIRMARY MEDICAL CENTER, Jay Holland, M.D., Candida Griffin, And Sarah Elizabeth Miller, Appellees.
• Court: Arkansas Supreme Court

2012 Ark. 369

423 S.W.3d 548

Patricia CANNADY, Individually and as Administratrix of The Estate of Anne Pressly, Deceased, Appellant

v.ST. VINCENT INFIRMARY MEDICAL CENTER, Jay Holland, M.D., Candida Griffin, And Sarah Elizabeth Miller, Appellees.

No. 11–1298.

Supreme Court of Arkansas.

Oct. 4, 2012.

Rehearing Denied Nov. 8, 2012.

McDaniel & Wells, P.A., Jonesboro, by: Bobby McDaniel; and J.G. “Gerry” Schulze, Little Rock, for appellant.

Munson, Rowlett, Moore and Boone, P.A., by: Timothy L. Boone, Sarah E. Greenwood, Little Rock, and Beverly A. Rowlett, for appellee St. Vincent Infirmary Medical Center.

JIM GUNTER, Justice.

Appellant appeals the grant of appellees' motion for summary judgment and argues that the circuit court erred in finding that (1) the claim for invasion of privacy did not survive the death of the decedent; (2) the outrage claim did not survive the death of the decedent and could not be asserted as a relational wrong by the decedent's survivors; and (3) St. Vincent could not be held vicariously liable. Because this case presents an issue of substantial public interest and needing clarification or development of the law, this court has jurisdiction pursuant to Ark. Sup.Ct. R. 1–2(b)(4) & (5). We affirm on the first point and reverse on the remaining points.

In a complaint filed October 16, 2009, appellant, individually and as the administratrix of the Estate of Anne Pressly, alleged claims of invasion of privacy and outrage against appellees St. Vincent Infirmary Medical Center, Dr. Jay Holland, Candida Griffin, and Sarah Elizabeth Miller.¹ The complaint alleged that Holland, Griffin, and Miller had each accessed the medical records of Anne Pressly with no legitimate reason and that St. Vincent took no action to restrict such access to medical records available through its electronic database system. An amended complaint was filed on January 7, 2010, adding that defendants Holland, Griffin, and Miller had each pled guilty to a violation of 42 U.S.C. § 1320(d)– 6(a)(2), which governs the wrongful disclosure of individually identifiable health information.

Appellees each filed separate answers and argued, inter alia, that the complaint failed to state facts upon which relief could be granted because any alleged claim for invasion of privacy or outrage did not survive the death of the decedent. On April 20, 2011, St. Vincent filed a motion for summary judgment, again arguing that a claim for invasion of privacy does not survive the death of a decedent and that the claim for the tort of outrage must also fail because it is based on the alleged invasion of privacy. In response, appellant argued that, under Arkansas's survival statute, codified at Ark.Code Ann. § 16–62–101 (Repl.2005), claims for intrusion, a category of invasion of privacy claims, do survive the death of a decedent. Appellant also denied that the claim for outrage was dependent on the claim for invasion of privacy. Appellees Griffin, Holland, and Miller also filed separate motions for summary judgment, all of which adopted and joined the motion for summary judgment filed by St. Vincent.

After a hearing on the matter held on October 4, 2011, the court entered an order on October 14, 2011, granting summary judgment in favor of appellees. The court concluded:

A. Arkansas Code Ann. § 16–62–101(a)(1) does not provide for the claim of invasion of privacy to survive the death of the decedent.

B. The claim for outrage fails because the claim is based on the same conduct as the claim for invasion of privacy; therefore, does not survive the death of the decedent and is not capable of assertion as a relational wrong by the decedent's survivors;

C. Because the claims of invasion of privacy and the tort of [o]utrage fail, St. Vincent's Infirmary Medical Center cannot be held vicariously liable for the conduct of its employees.

(Footnotes omitted.) Appellant filed a timely notice of appeal from this order on November 1, 2011.

Summary judgment may only be granted when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. See K.C. Props. of Nw. Ark., Inc. v. Lowell Inv. Partners, 373 Ark. 14, 280 S.W.3d 1 (2008). Ordinarily, upon reviewing a court's decision on a summary-judgment motion, we would examine the record to determine if genuine issues of material fact exist. See Travis Lumber Co. v. Deichman, 2009 Ark. 299, 319 S.W.3d 239. However, in a case such as this one, which does not involve the question of whether factual issues exist but rather the application of legal rules, we simply determine whether appellees were entitled to judgment as a matter of law. See id.

For appellant's first point on appeal, she argues that the circuit court erred in finding that the survival statute, Ark.Code Ann. § 16–62–101(a)(1), did not provide for the claim of invasion of privacy to survive the death of the decedent. This court has recognized that there are four actionable forms of the tort of invasion of privacy: (1) appropriation; (2) intrusion; (3) public disclosure of private facts; and (4) false light in the public eye. Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002). In this case, appellant claimed a violation of the second form, intrusion. This court discussed the claim of intrusion in Wal–Mart Stores, Inc. v. Lee, 348 Ark. 707, 719–20, 74 S.W.3d 634, 644 (2002):

In Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979), this court adopted the approach of the Restatement (Second) of Torts, which delineates four separate torts grouped under “invasion of privacy.” The privacy tort covers behavior harmful to the plaintiff even though there is no injury to his reputation. Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984). Intrusion has been recognized in Arkansas as one of the four actionable forms of invasion of privacy. Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997). Intrusion is the invasion by one defendant upon the plaintiff's solitude or seclusion. Id.

Although Arkansas courts have seldom adjudicated intrusion claims, the United States Court of Appeals for the Eighth Circuit opined that, because this court adopted the Restatement approach, Arkansas courts would likely follow the Restatement's analysis of the tort of intrusion. Fletcher v. Price Chopper Foods of Trumann, Inc., 220 F.3d 871 (8th Cir.2000). The Restatement defines liability for intrusion upon seclusion as follows:

One who intentionally intrudes, physically or otherwise, upon the solicitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Id. at 875 (quoting Restatement (Second) of Torts § 652B (1977)). According to the Eighth Circuit, the tort consists of three parts: (1) an intrusion; (2) that is highly offensive; (3) into some matter in which a person has a legitimate expectation of privacy. Id. A legitimate expectation of privacy is the “touchstone” of the tort of intrusion. Id. at 877

In the instant case, appellant acknowledges that at common law, tort claims did not survive the death of the plaintiff. However, appellant argues, the Arkansas General Assembly changed that law by statute with the enactment of § 16–62–101, which provides:

(a)(1) For wrongs done to the person or property of another, an action may be maintained against a wrongdoer, and the action may be brought by the person injured or, after his or her death, by his or her executor or administrator against the wrongdoer or, after the death of the wrongdoer, against the executor or administrator of the wrongdoer, in the same manner and with like effect in all respects as actions founded on contracts.

(2) Nothing in subdivision (a)(1) of this section shall be so construed as to extend its provisions to actions of slander or libel.

Ark.Code Ann. § 16–62–101 (Repl.2005). In Ward v. Blackwood, 41 Ark. 295, 298 (1883), we interpreted an earlier version of this statute to mean that “[t]he language of the statute includes every action, the substantial character of which is a bodily injury, or damage of a physical character, but does not extend to torts which do not directly affect the person, but only the feelings or reputation, such as malicious prosecution.”

Appellant argues that, based on the language of the statute, the only exceptions to the survival statute are actions for slander or libel and that an action for intrusion does survive the decedent. Appellant attempts to distinguish the language in Ward by arguing that the opinion treated malicious prosecution as an injury to reputation, and appellant expands that interpretation to state that the “only class of tort that does not survive the death of a decedent under Arkansas law is a claim in which the touchstone is an injury to reputation.” The “touchstone” of intrusion is a legitimate expectation of privacy, appellant asserts, and such a claim is preserved by the survival statute. Appellant acknowledges that there is a split of authority in other states as to whether a claim for intrusion survives the death of a decedent but argues that this court should follow Reid v. Pierce County, 136 Wash.2d 195, 961 P.2d 333 (1998). In Reid, the Washington Supreme Court held that the immediate relatives of a decedent have a protectable, common-law privacy interest in the autopsy records of the decedent and should be allowed to proceed to trial against county employees accused of improperly obtaining and displaying autopsy photographs.

In response, St. Vincent argues that Ward extended the exceptions in the survival statute to include other torts “which do not directly affect the person, but only the feelings or reputation.” 41 Ark. at 298. St. Vincent also cites Arkansas Life Ins. Co. v. American National Life Ins. Co., 110 Ark. 130, 161 S.W. 136 (1913), in which this court held that claims made on behalf of a...