Doe v. High-Tech Institute, Inc., HIGH-TECH

• Decision Date: 09 July 1998
• Docket Number: HIGH-TECH,No. 97CA0385,97CA0385
• Citation: 972 P.2d 1060
• Parties: 132 Ed. Law Rep. 989, 98 CJ C.A.R. 3740 John DOE, Plaintiff-Appellant, v.INSTITUTE, INC., d/b/a Cambridge College, an Arizona corporation, Defendant-Appellee. . III
• Court: Colorado Court of Appeals

Page 1060

972 P.2d 1060

132 Ed. Law Rep. 989, 98 CJ C.A.R. 3740

John DOE, Plaintiff-Appellant, v. HIGH-TECH INSTITUTE, INC., d/b/a Cambridge College, an

Arizona corporation, Defendant-Appellee.

No. 97CA0385.

Colorado Court of Appeals,

Div. III.

July 9, 1998.

As Modified on Denial of Rehearing

Aug. 6, 1998.

Certiorari Denied March 1, 1999. ^*

Robert P. Borquez, Denver, Colorado, for Plaintiff-Appellant.

Burg & Eldredge, P.C., Diane V. Smith, Englewood, Colorado, for Defendant-Appellee.

Temple Law School, Scott Burris, Associate Professor, Philadelphia, Pennsylvania, for Amicus Curiae The American Civil Liberties Union AIDS/HIV Project; Mark Silverstein, Legal Director, Denver, Colorado, for Amicus Curiae The American Civil Liberties Union of Colorado; Chester R. Chapman, Michael W. Breeskin, Denver, Colorado, for Amicus Curiae The Legal Center for People with Disabilities and Older People.

Agneta Breitenstein, Boston, Massachusetts, for Amicus Curiae JRI Health Law Institute; Kevin W. Williams, Denver, Colorado, for Amicus Curiae Colorado Cross-Disability Coalition.

Opinion by Judge DAVIDSON.

This action concerns the unauthorized testing of a blood sample and the subsequent publication of the results of that test. In his complaint against defendant, High-Tech Institute, Inc., d/b/a Cambridge College (Cambridge), plaintiff, John Doe, brought several claims for relief including, as relevant here, two claims for invasion of privacy, one premised on a theory of intrusion upon seclusion for the improper appropriation of private information, and another premised on public disclosure of private facts for the improper publication of that information. He appeals from the judgment entered against him by the trial court dismissing the claim for intrusion upon seclusion pursuant to C.R.C.P. 12(b)(5). We reverse and remand.

According to his complaint, plaintiff was a student in Cambridge's medical assistant training program. Shortly after the beginning of a class, he informed the instructor that he had tested positive for human immunodeficiency virus (HIV) as the result of an anonymous blood test and requested the instructor to treat that information as confidential.

That same month, the instructor informed the class that all students at Cambridge were required to be tested for rubella. Each student was given a consent form indicating that such test would be performed on a blood sample. Plaintiff signed and returned the consent form with the understanding that his blood sample would be tested only for rubella. Without plaintiff's knowledge, the instructor requested the laboratory doing the testing also to test plaintiff's blood sample for HIV. She did not request this test for any other student. The test yielded a positive result for HIV. The laboratory, as required under § 25-4-1402, C.R.S.1997, reported plaintiff's name, address, and positive HIV status to the Colorado Department of Health and informed Cambridge of the test results.

As a result of these events, plaintiff filed suit against Cambridge and the laboratory asserting several claims, including those described above.

The laboratory moved for and was granted dismissal of the claim for intrusion upon seclusion. Plaintiff later settled with the laboratory on his other claims.

Thereafter, based on the laboratory's dismissal, Cambridge filed a motion pursuant to C.R.C.P. 12(b)(5) to dismiss plaintiff's claim for intrusion upon seclusion, and the motion was granted effectively on the same grounds. The remaining claims proceeded to trial and a jury determined that Cambridge was liable to plaintiff on his claim of invasion of privacy based upon unreasonable disclosure of private facts.

I.

Initially, Cambridge contends that plaintiff's appeal of the dismissal of his claim of intrusion upon seclusion is moot because he received a judgment after trial on his claim of invasion of privacy based upon unreasonable public disclosure of private facts. Cambridge argues that the claim on which plaintiff received judgment and the claim which was dismissed are simply different facets of a single claim of invasion of privacy and that, because plaintiff accepted the judgment awarded upon one claim, the other claim necessarily is rendered moot. We disagree.

A.

Invasion of privacy is a generic term for a number of separate torts commonly identified as: (1) publicity that places one in a false light in the public eye; (2) appropriating one's name or likeness for another's benefit; (3) public disclosure of private facts, which concerns the communication or publication to third parties of information or activities which a person has held private; and, at issue here, (4) intrusion upon seclusion, which focuses on the manner in which information that a person has kept private has been obtained. See Prosser, Privacy, 48 Cal. L.Rev. 383 (1960).

Although all of these claims concern, in the abstract, the concept of being left alone, each tort has distinct elements and establishes a separate interest that may be invaded. See Wolf v. Regardie, 553 A.2d 1213 (D.C.Ct.App.1989); see also Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371 (Colo.1997) (noting that other jurisdictions recognize that privacy may be invaded in four ways).

According to Restatement (Second) of Torts § 625B (1981), to prevail on a claim for intrusion upon seclusion as a violation of one's privacy, a plaintiff must show that another has intentionally intruded, physically or otherwise, upon the plaintiff's seclusion or solitude, and that such intrusion would be considered offensive by a reasonable person. See also Purrelli v. State Farm Fire & Casualty Co., 698 So.2d 618 (Fla.Ct.App.1997).

On the other hand, to prevail on a claim for unreasonable disclosure of private facts, a plaintiff must establish that: (1) the fact disclosed was private in nature; (2) the disclosure was made to the public; (3) the disclosure was one which would be highly offensive to a reasonable person; (4) the disclosed fact was not of legitimate concern to the public; and (5) the one who disclosed the fact did so with reckless disregard of the private nature of the fact disclosed. Robert C. Ozer, P.C. v. Borquez, supra.

Thus, not only do the two claims contain different elements that must be established, but here, each claim arises under differing circumstances and is established by different facts. The basis for plaintiff's claim for intrusion upon seclusion is the improper appropriation of private information resulting from the HIV test that was performed without his knowledge or consent. In contrast, plaintiff's claim for unreasonable disclosure of private facts arose from the laboratory's reporting of the results of the unauthorized blood test to the department of health and Cambridge's disclosure of the results to third parties.

B.

Cambridge argues that, nevertheless, even if plaintiff were allowed to proceed on his claim of intrusion upon seclusion, any damages he might be awarded would simply be duplicative of the damages he has already received. Alternatively, Cambridge points out that plaintiff has not appealed from the judgment entered in his favor on his claim for unreasonable disclosure of private facts. Thus, Cambridge asserts, because plaintiff has accepted the benefits of the judgment, he is precluded from challenging the dismissal of his seclusion claim. We disagree with both contentions.

1.

Generally, a plaintiff may not receive a double recovery for the same wrong. Lexton-Ancira Real Estate Fund v. Heller, 826 P.2d 819 (Colo.1992). However, as discussed, the claims made by plaintiff, while based on events occurring close in time, are not supported by identical evidence and do not comprise the same wrong. Accordingly, plaintiff is not seeking duplicative damages for the same loss under an alternative theory. Rather, he seeks damages for Cambridge's conduct prior to and apart from any disclosure of his HIV status. Thus, the fact that plaintiff received a judgment on one claim does not render moot his appeal of the dismissal of the other claim.

2.

Although, generally, a party who has accepted the benefits of a judgment may not seek reversal of that judgment on appeal, an appeal may lie if the provisions of the judgment from which the appeal is taken are not mutually dependent on those provisions from which the party has accepted the benefits, and reversal of the former will not require reversal of the latter. Rasheed v. Mubarak, 695 P.2d 754 (Colo.App.1984); see Paulu v. Lower Arkansas Valley Council of Governments, 655 P.2d 1391 (Colo.App.1982) (plaintiff who accepted benefit of judgment on contract claim was allowed to appeal denial of assessment of penalty and attorney fees against defendant because the appeal was based on a statutory claim).

Underlying this rule is the possibility that an appeal may lead to a result showing that a plaintiff is not entitled to what has been received under the judgment from which the appeal is taken. See Colorado Mountain Properties, Inc. v. Heineman, 860 P.2d 1388 (Colo.App.1993) (plaintiff, who received damages for illegal taking and refused to accept amount awarded for nominal damages on related claim, allowed to appeal nominal damage award).

Here, reversal of the dismissal of the intrusion upon seclusion claim does not require reversal of the judgment for plaintiff for his claim of unreasonable public disclosure of private facts. The two claims are not mutually dependent. As discussed, they are distinct and discrete claims and are established by different facts.

Additionally, that plaintiff has received damages for his claim of unreasonable public disclosure of private facts does not preclude an award of damages for his claim of intrusion upon seclusion.

One who suffers an intrusion upon his or her seclusion is entitled to recover damages for the harm to the particular privacy interest that has been invaded. Here, the alleged harm as to that claim does not result from the...