Fergerstrom v. Hawaiian Ocean View Estates

Decision Date14 May 1968
Docket NumberNo. 4675,4675
Citation441 P.2d 141,50 Haw. 374
PartiesBetty Box FERGERSTROM and Joseph E. Fergerstrom, Plaintiffs-Appellees, v. HAWAIIAN OCEAN VIEW ESTATES, a Nevada corporation, Defendant-Appellant.
CourtHawaii Supreme Court

Syllabus by the Court

The common law recognizes a cause of action for invasion of a right of privacy where the defendant uses the plaintiff's name or picture without permission in advertising the defendant's product.

L. N. Nevels, Jr., Hilo (Nevels & Chang, Hilo, of counsel), for defendant-appellant.

E. D. Crumpacker, Kailua Kona, for plaintiffs-appellees.

Before RICHARDSON, C. J., and MIZUHA, MARUMOTO, ABE and LEVINSON, JJ.

LEVINSON, Justice.

This case comes to us on interlocutory appeal from an order denying the defendant's motion for summary judgment. The plaintiffs' complaint alleges that they, husband and wife, purchased a parcel of land from the defendant, a corporation, for the construction of a house. The defendant's employees took pictures of one of the plaintiffs and of the house at various stages of construction. The defendant used the photographs and the plaintiffs' name in sales brochures, in advertisements in publications, and in television commercials. The complaint alleged that the defendant's acts constituted an actionable invasion of their right of privacy. Count I alleged:

The use of said photographs and the names of the plaintiffs as aforesaid was without the prior knowledge and consent of plaintiffs and constitutes multiple continuing and multifarious violations of plaintiffs' right of privacy, by reason of which plaintiffs have been held up to public exposure and ridicule, their right of privacy has been invaded by a continuous stream of defendant's 'sales prospects' coming on to plaintiffs' property, using plaintiffs' facilities and generally bothering plaintiffs in their said home, causing humiliation, annoyance and embarrassment to plaintiffs to their damage in the sum of $25,000.

The second count alleged a cause of action for unjust enrichment. The final count requested $25,000 punitive damages on the ground that the defendant has refused to discontinue using the plaintiffs' photographs and name. The defendant moved for summary judgment on the grounds that there is no common law action for invasion of privacy and that the legislature has not provided for such an action.

The defendant contends that since the ancient common law did not afford a remedy for invasion of privacy, and there is no case in Hawaii recognizing such a right, only the legislature can provide for such a cause of action. 1 The magnitude of the error in the defendant's position approaches Brobdingnagian proportions. To accept it would constitute more than accepting a limited view of the essence of the common law. It would be no less than an absolute annihilation of the common law system. This spectre of judicial self-emasculation has pervaded one case in which the court accepted this line of argument. Brunson v. Ranks Army Store, 161 Neb. 519, 73 N.W.2d 803 (1955) 2.

A case decided, 4 to 3, by the New York Court of Appeals best articulates the arguments against judicial recognition of an action for invasion of privacy, Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442, 59 L.R.A. 478 (1902). The majority opinion presents five basic arguments. First, there was no precedent in the ancient English common law. Second, the injury was of a purely mental character. Third, a 'vast amount of litigation' would be encouraged. Fourth, the distinction which would have to be drawn between public and private characters could not be effectively drawn. Fifth, it might unduly restrict free speech and press. However persuasive these arguments may have been in 1902, they amount to little more than straws in the wind today.

On the issue of lack of precedent, there is a substantial question whether the common law provided no basis for recognizing a right of privacy, Roberson v. Rochester Folding Box Co., supra at 565-566, 64 N.E. at 450-451 (gray, J. dissenting); Warren and Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890). In any event, the absence of precedent is a feeble argument. 3 The common law system would have withered centuries ago had it lacked the ability to expand and adapt to the social, economic, and political changes inherent in a vibrant human society.

'(T)he genius of the common law, upon which our jurisprudence is based, is its capacity for orderly growth.' Lum v. Fullaway, 42 Haw. 500, 502 (1958). Indeed, tort law as we know it today bears little, if any, resemblance to tort law in its early development, when a writ held the key to entry into the room of justice. 4 This court recognized the relatively new tort of intentional infliction of emotional distrees although there was no more precedent in the ancient common law for that tort than for the protection of the right of privacy, see Fraser v. Blue Cross Animal Hosp., 39 Haw. 370 (1952).

As for the argument that the injury is purely mental in character, even if it were true it would not be persuasive. In the Fraser case, the court recognized a tort which was defined in terms of infliction of solely mental injury.

The argument that recognizing the tort will result in a vast amount of litigation has accompanied virtually every innovation in the law. Assuming that it is true, that fact is unpersuasive unless the litigation largely will be spurious and harassing. Undoubtedly, when a court recognizes a new cause of action, there will be many cases based on it. Many will be soundly based and the plaintiffs in those cases will have their rights vindicated. In other cases, plaintiffs will abuse the law for some unworthy end, but the possibility of abuse cannot obscure the need to provide an appropriate remedy. 5

As to the need to distinguish between public and private figures, the difficulty of drawing a line is no bar to the recognition of a cause of action. 6 But such a distinction is irrelevant in this case since the defendant has appropriated the plaintiffs' name and personality for its own benefit in advertising. Even were the defendant able to establish at trial that the plaintiffs were public figures, that would not be a defense to this cause of action. Furthermore, distinguishing between...

To continue reading

Request your trial
13 cases
  • Briscoe v. Reader's Digest Association, Inc.
    • United States
    • California Supreme Court
    • April 2, 1971
    ...546; Hamberger v. Eastman (1964) 106 N.H. 107, 206 A.2d 239; Rugg v. McCarty (Colo.1970) 476 P.2d 753; Fergerstrom v. Hawaiian Ocean View Estates (Hawaii 1968) 441 P.2d 141; Apodaca v. Miller (1968) 79 N.M. 160, 441 P.2d 200.) California has recognized the right to privacy for 40 years. (Me......
  • Young v. Allstate Ins. Co.
    • United States
    • Hawaii Supreme Court
    • December 26, 2008
    ...would result in a flood of litigation "has accompanied virtually every innovation in the law." Fergerstrom v. Hawaiian Ocean View Estates, 50 Haw. 374, 377, 441 P.2d 141, 143 (1968). Assuming that it is true, that fact is unpersuasive unless the litigation largely will be spurious and haras......
  • Lanier v. President & Fellows of Harvard Coll.
    • United States
    • Appeals Court of Massachusetts
    • June 23, 2022
    ...change unwelcome. Indeed, "[t]he genius of the common law ... is its capacity for orderly growth," see Fergerstrom v. Hawaiian Ocean View Estates, 50 Haw. 374, 376, 441 P.2d 141 (1968), quoting Lum v. Fullaway, 42 Haw. 500, 502 (1958), and "[n]o litigant is automatically denied relief solel......
  • N.K. Collins, LLC v. William Grant & Sons, Inc.
    • United States
    • U.S. District Court — District of Hawaii
    • July 17, 2020
    ...this change evidences that the HPRA was enacted to "confirm" an existing common law right, established in Fergerstrom v. Hawaiian Ocean View Estates, 50 Haw. 374, 441 P.2d 141 (1968), and "merely codified a method of enforcing" that existing right. Opp. to HPRA Motion at 17 (citing Hyman, 9......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT