Fry v. Ionia Sentinel-Standard, SENTINEL-STANDAR

• Decision Date: 20 November 1980
• Docket Number: Docket No. 48559,D,SENTINEL-STANDAR
• Parties: , 6 Media L. Rep. 2497 Peggy Jo FRY, for herself and next friend to Kimberly and Ted Fry, Plaintiff-Appellant, v. IONIAefendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 687

300 N.W.2d 687

101 Mich.App. 725, 6 Media L. Rep. 2497

Peggy Jo FRY, for herself and next friend to Kimberly and Ted Fry, Plaintiff-Appellant, v. IONIA SENTINEL-STANDARD, Defendant-Appellee.

Docket No. 48559.

Court of Appeals of Michigan.

Nov. 20, 1980.

Released for Publication Jan. 29, 1981.

Kenneth A. Birch, East Lansing, for plaintiff-appellant.

Douglas R. Welch, Ionia, for defendant-appellee.

Before MAHER, P. J., and R. B. BURNS and WALSH, JJ.

WALSH, Judge.

Plaintiff brought an action against defendant newspaper for invasion of privacy and intentional infliction of emotional distress arising from the publication of a newspaper story concerning the accidental death of plaintiff's husband. Plaintiff appeals the trial court's entry of summary judgment in favor of defendant.

On January 31, 1978, defendant published a newspaper report of the death of Ted Fry, husband of plaintiff Peggy Jo Fry and father of Kimberly and Ted Fry, III. The article stated that a body believed to be that of Ted Fry was removed from a fire-destroyed cottage near Lake, Michigan. The report also indicated that a second body, believed to be that of Rita Hill, was also recovered. The automobiles of both individuals were found nearby. The story included information provided by Wilma Long that Fry and Hill were seen together at a local bar the night prior to the fire. The article mentioned that Fry was a partner with his wife in PJ's One-Stop Grocery Store and Gas Station in Ionia, Michigan, and that the couple had two children, Kimberly and Ted, III.

Defendant responded to plaintiff's allegations of invasion of privacy and intentional infliction of emotional distress by filing a motion for summary judgment. In ruling on the motion, the circuit court stated that any right of privacy of Ted Fry terminated upon his death. The court determined that plaintiff and her children had no reasonable expectation of privacy concerning the information in the article about their relation to one of the fire victims. In granting the summary judgment on the claim of intentional infliction of emotional distress, the court found no tortious act on which plaintiff could base any recovery.

A motion for summary judgment which is based on GCR 1963, 117.2(3), is designed to test whether there is factual support for a claim. Crowther v. Ross Chemical & Manufacturing Co., 42 Mich.App. 426, 202 N.W.2d 577 (1972). In passing on a motion under this subrule, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence then available to it. Rizzo v. Kretschmer, 389 Mich. 363, 207 N.W.2d 316 (1973). Before judgment may be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. The motion has the limited function of determining whether a material issue of fact exists. Partrich v. Muscat, 84 Mich.App. 724, 270 N.W.2d 506 (1978).

Plaintiff argues that the trial court erred in its entry of summary judgment on the invasion of privacy claim because this tort involves a balance between the public's right to information of legitimate concern and the individual's right to avoid publication of private matters highly offensive to the average person. We find no error in the disposition by the circuit court.

An invasion of privacy claim can be grounded on the public disclosure of embarrassing private facts about the plaintiff. Beaumont v. Brown, 401 Mich. 80, 95 fn. 10, 257 N.W.2d 522 (1977), citing Prosser, Privacy, 48 Cal.L.Rev. 383, 389 (1960). This form of invasion of privacy ¹ requires that the disclosed information be highly offensive to a reasonable person and of no legitimate concern to the public. 3 Restatement Torts 2d, § 652D, p. 383. The publicity, however, must concern the private, as distinguished from the public, life of the individual. The Restatement of Torts notes:

"There is no liability when the defendant merely gives further publicity to information about the plaintiff that is already public. Thus there is no liability for giving publicity to facts about the plaintiff's life that are matters of public record, such as the date of his birth, the fact of his marriage, his military record, the fact that he is admitted to the practice of medicine or is licensed to drive a taxicab, or the pleadings that he has filed in a lawsuit.

"Similarly, there is no liability for giving further publicity to what the plaintiff himself leaves open to the public eye. Thus he normally cannot complain when his photograph is taken while he is walking down the public street and is published in the defendant's newspaper. Nor is his privacy invaded when the defendant gives publicity to a business or activity in which the plaintiff is engaged in dealing with the public." 3 Restatement Torts 2 d, § 652D, comment b, pp. 385-386.

Other jurisdictions have expressly adopted the above-quoted provisions of the Restatement. See, Howard v. Des Moines Register and Tribune Co., 283 N.W.2d 289 298 (Iowa, 1979), Geisberger v. Willuhn, 72 Ill.App.3d 435, 28 Ill.Dec. 586, 390 N.E.2d 945 (1979). In Penokie v. Michigan Technological University, 93 Mich.App. 650, 661, 287 N.W.2d 304 (1979), this Court in the interpretation of a provision of the Michigan Freedom of Information Act, highlighted the requirement that the disclosed information must relate to the private life of the individual.

Another limitation on an actionable invasion of privacy claim is the prerequisite that the matter be of no legitimate concern to the public. Information of a legitimate concern to the public includes matters regarded as "news".

"Authorized publicity includes publications concerning homicide and other crimes, arrests, police raids, suicides, marriages and divorces, accidents, fires, catastrophes of nature, a death from the use of narcotics, a rare disease, the birth of a child to a twelve-year-old girl, the reappearance of one supposed to have been murdered years ago, a report to the police concerning the escape of a wild animal and many other similar matters of genuine, even if more or less deplorable, popular appeal." 3 Restatement Torts 2d, § 652D, comment g, pp. 390-391. (Emphasis added.)

See also, Prosser, Torts (4th ed), § 118, pp. 824-825.

In the case before us, the newspaper article mentioned that plaintiff was Ted Fry's wife and that they were business partners, and that Kimberly and Ted Fry, III, were Ted Fry's children. These were all matters of public record. As such, this information did not meet the threshold requirement that the facts exposed were kept hidden from the public eye. Further, publication of the names and relations of plain...