Doe v. Mills
| Decision Date | 07 July 1995 |
| Docket Number | Docket No. 170895 |
| Citation | 212 Mich.App. 73,536 N.W.2d 824 |
| Parties | Jane DOE and Nancy Roe, Next Friend of Sally Roe, a Minor, Plaintiffs-Appellants, v. Lynn MILLS and Sister Lois Mitoraj, Defendants-Appellees, and The Felician Sisters of O.S.F. of Livonia, Defendant. |
| Court | Court of Appeal of Michigan — District of US |
American Civil Liberties Union Fund of Michigan by Mark Granzotto, Paul J. Denenfeld, Elizabeth Gleicher, and Sharon S. Lutz, Detroit, for plaintiffs.
Constance E. Cumbey, Bloomfield Hills, for defendants.
Before JANSEN, P.J., and CORRIGAN and KAVANAGH, * JJ.
Plaintiffs appeal as of right from a circuit court order that granted summary disposition for defendants Lynn Mills and Sister Lois Mitoraj. We affirm in part, reverse in part, and remand.
Plaintiffs, using pseudonyms to protect their identity, commenced this action against defendants Lynn Mills, Sister Lois Mitoraj, and Mitoraj's religious order, The Felician Sisters of O.S.F. of Livonia, for the torts of invasion of privacy and intentional infliction of emotional distress. According to plaintiffs' complaint, defendants Mills and Mitoraj (hereinafter defendants), while protesting outside the Women's Advisory Center in Livonia, displayed the real names of plaintiffs Jane Doe and Sally Roe on "large signs" that were "held up for public view." The signs indicated that Doe and Roe were about to undergo abortions and implored them, inter alia, not to "kill their babies." Plaintiffs alleged that they did not give defendants permission to publicize the fact of their abortions. To the contrary, it was plaintiffs' intent to "keep the fact of their abortions private, confidential, and free from any publicity."
Plaintiffs alleged two different theories of invasion of privacy. Count II was labeled "public disclosure of private facts" and count III was labeled "intrusion upon seclusion." In addition, plaintiffs brought a claim for intentional infliction of emotional distress.
Defendants Mills and Mitoraj brought a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10). 1 The motion was supported by the affidavits of Robert Thomas, a nonparty, and defendant Mills. Thomas stated in his affidavit that he went to the Women's Advisory Center on June 1, 1991, at approximately 10:30 p.m., and climbed into a refuse dumpster that was located in the parking lot. Inside the dumpster, Thomas found a piece of paper indicating that plaintiffs Doe and Sally Roe were about to undergo abortions. Thomas gave this information to Mills the following day. Mills stated in her affidavit that she and Mitoraj went to the Women's Advisory Center on June 8, 1991, believing that Doe and Sally Roe would be arriving that day to have an abortion. Mills claimed that it was her intent to persuade both Doe and Sally Roe not to have an abortion and, therefore, she placed their names on two separate signs in order to "capture [their] attention." Mills took one sign and Mitoraj the other, and then both of them held the signs up for public view while positioned at the entrance to the Women's Advisory Center's parking lot.
In opposition to defendants' motion, plaintiffs submitted a portion of Mills' deposition testimony wherein Mills admitted that, before displaying the signs, she was aware that Thomas had obtained the information concerning plaintiffs from the garbage at the Women's Advisory Center. Plaintiffs did not submit any evidence indicating that either defendant was involved along with Thomas in obtaining the information from the garbage.
In an opinion dated November 9, 1993, the trial court granted defendants summary disposition of each of the two claims of invasion of privacy as well as the claim for intentional infliction of emotional distress. Plaintiffs appeal.
MCR 2.116(C)(8) permits summary disposition when the "opposing party has failed to state a claim on which relief can be granted." Under MCR 2.116(C)(8), only the pleadings are examined and the court must determine whether the pleadings allege a prima facie case. Radtke v. Everett, 442 Mich. 368, 373, 501 N.W.2d 155 (1993); Azzar v. Primebank, FSB, 198 Mich.App. 512, 516, 499 N.W.2d 793 (1993). All well-pleaded facts must be accepted as true. Radtke, supra. Only if the allegations fail to state a legal claim will summary disposition pursuant to MCR 2.116(C)(8) be proper. Id.
MCR 2.116(C)(10) tests the factual basis underlying a claim. Summary disposition is permitted under MCR 2.116(C)(10) when "there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." In ruling on such a motion, the court must consider the pleadings, together with any affidavits, depositions, admissions, or other evidence submitted by the parties. Radtke, supra at 374, 501 N.W.2d 155. The court must give the benefit of any reasonable doubt to the opposing party and may not grant the motion unless, after reviewing the pleadings and supporting documents, it is impossible for the claim to be supported at trial because of some deficiency that cannot be overcome. Stevens v. McLouth Steel Products Corp., 433 Mich. 365, 370, 446 N.W.2d 95 (1989).
Plaintiffs first argue that the trial court erred in dismissing their two claims of invasion of privacy.
The tort of invasion of privacy is based on a common-law right to privacy, which is said to protect against four types of invasion of privacy: (1) intrusion upon the plaintiff's seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity that places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness. Tobin v. Civil Service Comm., 416 Mich. 661, 672, 331 N.W.2d 184 (1982); Lewis v. Dayton Hudson Corp., 128 Mich.App. 165, 168, 339 N.W.2d 857 (1983). Only the first two types of claims are involved in this case. We find that the trial court erred in dismissing plaintiffs' claim for public disclosure of embarrassing private facts, but that summary disposition of the claim regarding intrusion upon seclusion was proper.
A cause of action for public disclosure of embarrassing private facts requires (1) the disclosure of information, (2) that is highly offensive to a reasonable person, and (3) that is of no legitimate concern to the public. Winstead v. Sweeney, 205 Mich.App. 664, 668, 517 N.W.2d 874 (1994); Duran v. Detroit News, Inc., 200 Mich.App. 622, 631, 504 N.W.2d 715 (1993).
Plaintiffs meet the first element of this action because they allege that defendants, while protesting in public, disclosed information publicizing their decision to have an abortion.
Regarding the second element, the trial court stated:
The words on the placards that were carried by the defendants conveyed the message that plaintiffs were contemplating and or scheduling an abortion. This is the disclosed information. Would plaintiffs seriously suggest or argue that one who contemplates or schedules an abortion has committed an act that is highly offensive to a reasonable person?
We disagree with the trial court to the extent it suggested the disclosure of the information was not actionable as a matter of law.
In analyzing a claim of invasion of privacy, courts generally have embraced the provisions of the Restatement of Torts describing that tort. See Tobin, supra at 672-673, 331 N.W.2d 184; Winstead, supra at 668, 675, 517 N.W.2d 874.
The Restatement of Torts describes the type of publicity that will give rise to an action for public disclosure of embarrassing private facts:
The rule stated in this Section gives protection only against unreasonable publicity, of a kind highly offensive to the ordinary reasonable man.... It is only when the publicity given to him is such that a reasonable person would feel justified in feeling seriously aggrieved by it, that the cause of action arises. [3 Restatement Torts, 2d, § 652D, comment c, p 387.]
Whether a public disclosure involves "embarrassing private facts" has been held to be a question of fact for the jury. Beaumont v. Brown, 401 Mich. 80, 106, 257 N.W.2d 522 (1977); Winstead, supra at 673, 517 N.W.2d 874; Y.G. & L.G. v. Jewish Hosp. of St. Louis, 795 S.W.2d 488, 503 (Mo.App., 1990).
Here, plaintiffs allege that defendants publicized the fact of their abortions despite their intent to keep this matter "private, confidential, and free from any publicity." Plaintiffs further allege that the publicity given by defendants was highly offensive and was deliberately calculated to embarrass and humiliate them, which it allegedly did. We cannot say that a reasonable person would not be justified in feeling seriously aggrieved by such publicity. Rather, we find that plaintiffs' allegations are sufficient to constitute a question for the jury regarding whether embarrassing private facts were involved in a public disclosure.
In order to satisfy the final element of an action for public disclosure of embarrassing private facts, the information disclosed must concern the individual's private life. Liability will not be imposed for giving publicity to matters that are already of public record or otherwise open to the public. Winstead, supra; Ledsinger v. Burmeister, 114 Mich.App. 12, 318 N.W.2d 558 (1982).
In describing those matters that will support an action for public disclosure of private facts, the Restatement of Torts states:
Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends. Sexual relations, for example, are normally entirely private matters. [3 Restatement Torts, 2d, § 652D,...
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