Doe v. Methodist Hosp., 30S01-9504-CV-420

Citation690 N.E.2d 681
Case DateDecember 31, 1997
CourtSupreme Court of Indiana

Page 681

690 N.E.2d 681
26 Media L. Rep. 1289
John DOE, Appellant (Plaintiff below),
METHODIST HOSPITAL, Lizzie Cameron, Logan Cameron and Cathy
Duncan, of whom Cathy Duncan is Sole Appellee
(Defendants below).
No. 30S01-9504-CV-420.
Supreme Court of Indiana.
Dec. 31, 1997.

Page 682

Sean C. Lemieux, Indianapolis, for Appellant.

Mark Small, Joseph P. Maguire, Indianapolis, for Appellee.


SHEPARD, Chief Justice.

Over the last century, courts and commentators have developed a quadripartite formulation for the tort of invasion of privacy. In this case we consider whether one branch of that tort, public disclosure of private facts, may form the basis of a civil action in Indiana. On the facts of this case, we decline to recognize that it may.


"John Doe" appeals the trial court's entry of summary judgment for appellee Cathy Duncan, whom Doe had sued for invasion of privacy. In reviewing a grant of summary judgment we construe the facts and the inferences they support in the light most favorable to the non-movant, in this case Doe. Bell v. Northside Finance Corp., 452 N.E.2d 951 (Ind.1983). Because he lost below, Doe

Page 683

bears the burden of demonstrating the trial court erred in granting summary judgment. Schrader v. Eli Lilly & Co., 639 N.E.2d 258 (Ind.1994).

Doe is a letter carrier for the U.S. Postal Service. In early 1990, he was rushed from his workplace to Methodist Hospital because of a suspected heart attack. During the ambulance ride, he informed the paramedics that he had tested positive for the human immunodeficiency virus (HIV), and they recorded that information in his medical records. Doe had previously disclosed his HIV status to a small circle of close friends and co-workers, but he had not shared that information with his co-workers generally. For several years rumors had circulated in the workplace, sometimes with a negative connotation, that Doe was gay. On that basis alone, some co-workers had speculated that he was HIV positive.

While Doe was in the hospital, co-worker Logan Cameron allegedly checked on Doe's condition by calling his own wife, Lizzie Cameron, 1 who worked at Methodist Hospital. Doe contends that Lizzie reviewed his confidential medical records, discovered he was HIV positive, and disclosed that information to her husband Logan. Doe further alleges that Logan Cameron related the information to some of Doe's co-workers, including Duncan.

Becky Saunders, who was also a letter carrier, stated that Duncan approached her and said: "I heard that [John Doe] has AIDS. Is it true?" (R. at 98.) According to Saunders, Duncan said that she received the information either from someone who worked in a clinic or from someone who knew someone who worked in a clinic. We accept, for the purposes of this appeal, Saunders statement that she was not previously aware of Doe's HIV status.

Duncan also approached co-worker Ron Okes in what he characterized as an attempt to verify the rumor. Okes was a close friend of Doe, and Doe had previously told him in confidence that he was HIV positive. Okes did not confirm Duncan's gossip. A few days later, Duncan approached Okes again. She told him she had gone to Doe's significant other, 2 who was also a co-worker, and apologized for spreading the rumor. 3

Doe and his significant other apparently complained to postal supervisors, and the Postal Service seems to have taken responsible action. According to Okes' testimony, the supervisors separately confronted Duncan and Logan Cameron about the incidents, perhaps in the presence of Doe and his partner. Duncan left her meeting in tears, and was ultimately transferred to a different work station.

Doe sued Duncan for invasion of privacy. 4 As damages, he alleged that he suffered "embarrassment, humiliation and mental distress." (R. at 19, 20, 21.) Doe did not allege any physical or economic injuries, nor did he file a claim of employment discrimination or harassment under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1994) (prohibiting Postal Service from discriminating against qualified individuals with disabilities). 5

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Duncan moved for summary judgment, which the trial court granted. Doe appealed, and the Court of Appeals affirmed. Doe v. Methodist Hospital, 639 N.E.2d 683 (Ind.Ct.App.1994). We granted Doe's petition for transfer, and now affirm the judgment of the trial court.

I. The Disclosure Sub-Tort

The invasion of privacy tort had its genesis in an 1890 law review article by Boston attorney Samuel Warren and his former law partner--and future Supreme Court Justice--Louis Brandeis. See generally Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L.Rev. 193 (1891). An impetus for it seems to have been the press's coverage of Warren's wife's social gatherings "in highly personal and embarrassing detail." William L. Prosser, Privacy, 48 Cal. L.Rev. 383, 383 (1960). The reports covering their daughter's wedding were apparently more than the Warrens' sensibilities could bear. Id. (the press "had a field day").

With the assistance of Brandeis, Warren set out to combat what he viewed as dangerous media excesses. The authors criticized the press for "overstepping in every direction the obvious bounds of propriety and decency." Warren & Brandeis, supra, at 196. They were concerned that truthful reporting about "private" affairs was causing "a lowering of social standards and of morality." Id. This agenda percolated with clarity beneath the cool analytical surface of the article. A cause of action for invasion of privacy would chill the press from reporting "unseemly gossip."

As Professor William Prosser later observed, the article "[p]iec[ed] together old decisions in which relief had been afforded on the basis of defamation, or the invasion of some property right, or a breach of confidence or an implied contract." Prosser, supra, at 384 (footnotes omitted). Warren and Brandeis argued that the old decisions could not satisfactorily be explained with reference to their stated legal bases. The authors contended that the allegedly aberrant decisions should instead be understood as signaling the emergence of a new, if ill-defined, right to privacy. Id.

Courts did not rush to recognize the new privacy tort. The high courts of Michigan and New York expressly rejected it. See Atkinson v. John E. Doherty & Co., 121 Mich. 372, 80 N.W. 285 (1899); Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (N.Y.1902). Judge O'Brien of the New York Court of Appeals felt so strongly about the issue he wrote a law review article defending the Roberson decision. See generally Denis O'Brien, The Right of Privacy, 2 Colum. L.Rev. 437 (1902). A few years later, however, the Georgia Supreme Court recognized the privacy tort. See Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1905). With the imprimatur of the first Restatement of Torts in the 1930s, the pace of recognition accelerated. See Restatement of Torts § 867 (1939); Prosser, supra, at 386.

Although Warren and Brandeis had written in terms of a comprehensive interest in privacy, the far-flung cases they cited never coalesced into a unified tort. The first Restatement managed to articulate a two-dimensional interest in "not having [one's] affairs known to others or [one's] likeness exhibited to the public." Restatement of Torts § 867. By 1960, Professor Prosser had concluded that invasion of privacy was "not one tort, but a complex of four." Prosser, supra, at 389.

The Second Restatement adopted this view, describing four distinct injuries: (1) intrusion upon seclusion, (2) appropriation of likeness, (3) public disclosure of private facts, and (4) false-light publicity. Restatement (Second) of Torts § 652A (1977). The Second Restatement also candidly acknowledged that these four separate wrongs were only tenuously related. They were united only in their common focus on some abstract notion of being left alone. Id. § 652A cmt b.

Page 685

Taken separately, each wrong more closely resembles other distinct torts, rather than separate branches of a single privacy tort. See, e.g., Restatement of Torts § 867 cmt a. Often the privacy tort seems to function as little more than a "lite" version of trespass, outrage, or defamation--promising the same great take with only half the facts. See, e.g., Lovgren v. Citizens First National Bank, 126 Ill.2d 411, 128 Ill.Dec. 542, 546, 534 N.E.2d 987, 991 (1989) ("It has been said that all defamation cases can be analyzed as false-light cases, but not all false-light cases are defamation cases."). Moreover, recognizing one branch of the privacy tort does not entail recognizing all four. See id., 128 Ill.Dec. at 544, 534 N.E.2d at 989 (accepting false light but declining to resolve appellate court disagreement over recognition of intrusion); Zinda v. Louisiana Pacific Corp., 149 Wis.2d 913, 440 N.W.2d 548, 555 (1989) (observing that privacy statute includes intrusion, appropriation, and disclosure, but not false light).

The only branch of the privacy tort at issue in this case is disclosure. This cause of action has been recognized in most states, see Diane L. Zimmerman, Requiem for a Heavyweight: A Farewell to Warren and Brandeis's Privacy Tort, 68 Cornell L.Rev. 291, 365-67 (1983), including each of Indiana's neighbors. See Miller v. Motorola, Inc., 202 Ill.App.3d 976, 148 Ill.Dec. 303, 560 N.E.2d 900 (1990); Brents v. Morgan, 221 Ky. 765, 299 S.W. 967 (1927); Beaumont v. Brown, 401 Mich. 80, 257 N.W.2d 522 (1977), overruled in part by Bradley v. Bd. of Educ., 455 Mich. 285, 565 N.W.2d 650 (1997) (Freedom of Information Act supercedes state employee's privacy right); Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956). On the other hand, a few states have refused to recognize disclosure. See Hall v. Post, 323 N.C. 259, 372 S.E.2d 711 (1988); Freihofer v. Hearst Corp., 65 N.Y.2d 135, 490 N.Y.S.2d 735, 480 N.E.2d...

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