Judge v. Saltz Plastic Surgery, P.C.
| Decision Date | 04 February 2016 |
| Docket Number | No. 20140654.,20140654. |
| Citation | 367 P.3d 1006 |
| Parties | Conilyn JUDGE, Respondent, v. SALTZ PLASTIC SURGERY, P.C. and Renato Saltz, M.D., Petitioners. |
| Court | Utah Supreme Court |
Roger H. Hoole, Gregory N. Hoole, Salt Lake City, for respondent.
Robert G. Wright, Mark L. McCarty, Brandon B. Hobbs, Zachary E. Peterson, Salt Lake City, for petitioners.
Justice JOHN A. PEARCE became a member of the Court on December 17, 2015, after oral argument in this matter, and accordingly did not participate.
, opinion of the Court:
INTRODUCTION
¶ 1 After partially redacted versions of her nude pre- and post-operative photographs were aired on the evening news, Conilyn Judge filed a lawsuit against Saltz Plastic Surgery, P.C., and Renato Saltz, M.D., (collectively, Saltz) and against Fox News. The claims against Fox News were dismissed pursuant to a settlement agreement. Ms. Judge alleged five causes of action against Saltz: "(1) public[ation] of private facts, (2) false light, (3) intrusion upon seclusion, (4) breach of fiduciary duty, and (5) negligent employment and supervision." Saltz moved for and was granted summary judgment on all five claims. The Utah Court of Appeals subsequently reversed the grant of summary judgment for each of the five causes of action. We granted review as to the following two issues regarding the claim for publication of private facts: (1) whether we should adopt the requirement in section 652D(b) of the Restatement (Second) of Torts that plaintiffs must show that "the matter publicized ... is not of legitimate concern to the public" and (2) whether the court of appeals erred in concluding, based on that provision, that disputed issues of fact precluded summary judgment on this claim. We also granted review as to whether the court of appeals erred in holding that disputed issues of material fact concerning the scope and meaning of a consent form signed by Ms. Judge precluded summary judgment on the claim for intrusion on seclusion.
¶ 2 For reasons explained below, we adopt the Restatement's legitimate public concern element for claims for publication of private facts, and we affirm the court of appeals' reversal of the grant of summary judgment on the claims for publication of private facts and intrusion on seclusion.
¶ 3 In October 2006, Dr. Saltz performed an abdominoplasty
and a breast augmentation on Ms. Judge.1 Prior to surgery, Ms. Judge signed two consent forms entitled "Consent for Surgery/Procedure or Treatment." One form included the following language (the other used "functionally identical" language): "I consent to be photographed or televised before, during, and after the operation(s) or procedure(s) to be performed, including appropriate portions of my body, for medical, scientific or educational purposes, provided my identity is not revealed by the pictures." Judge v. Saltz Plastic Surgery, PC, 2014 UT App 144, ¶ 2 & n. 1, 330 P.3d 126.
¶ 4 In 2007, Fox News decided to produce a two-part news story about "the risks and benefits of plastic surgery
, and how to select a reputable and qualified plastic surgeon." For this story, a Fox News reporter interviewed a woman who experienced serious medical complications following plastic surgery. In order to counterbalance the negative example, the reporter contacted Saltz's office to ask "whether Dr. Saltz had a patient with a positive surgical outcome who would be willing to be interviewed for the news story" about plastic surgery and how to choose a plastic surgeon. Saltz invited Ms. Judge to be interviewed for the story. Because of her interest in women's health issues and her desire to help "women make a more informed decision about how to choose a plastic surgeon and ... be aware of why [they] might want to have plastic surgery and that it's okay," Ms. Judge agreed to participate in the news story. Ms. Judge "felt that [it] would be an educational piece for the public."
¶ 5 Ms. Judge was interviewed by the Fox News reporter on January 11, 2008, at Saltz's office. During the interview, Ms. Judge openly discussed her plastic surgery, stating that she was "really pleased" and describing the results. The interview included Dr. Saltz conducting a mock medical examination of Ms. Judge, which was filmed for use as background footage. Ms. Judge wore a paper examination gown for the duration of the mock examination. She expressed concern "about the camera angles that might be used and wanted to ensure that the filming was appropriate and tasteful, showing no cleavage or thigh." After the mock examination, Ms. Judge posed for post-operative photographs showing the results of her surgery.2
¶ 6 While Ms. Judge was changing back into her street clothes after the mock examination, the reporter asked Saltz's office manager for "before and after" pictures of Ms. Judge and other patients. According to Saltz, once Ms. Judge came out of the examination room, Saltz's office manager asked Ms. Judge, in the presence of the reporter and Dr. Saltz, for consent to release the clinical photographs for the news story, and Ms. Judge gave consent for the release. However, the reporter denied this account even though her denial subjected her employer, Fox News, to liability. And Ms. Judge avers that she did not consent to the release of the photographs to the news media. Later that day, Saltz's office manager emailed Ms. Judge's unredacted nude pre- and post-operative photographs to the reporter, identifying them by writing, in one email, "Here are Coni's before pictures" and, in another email, "[H]ere are Coni's after pictures."3 Saltz "placed no restrictions on Fox News' use of [Ms. Judge's] clinical photographs in the email with which they were sent or otherwise."
¶ 7 Fox News selected two of Ms. Judge's photographs for use in the news story and redacted them by placing black bars across Ms. Judge's bust and pelvis. Judge, 2014 UT App 144, ¶ 6, 330 P.3d 126
. The "photographs were taken from the neck down and did not show [Ms. Judge's] face," but showed her body "from neck to upper thigh." Id. ¶ 5. Fox News then used the redacted photographs in the January 31, 2008 news story about plastic surgery, identifying them by stating, "[T]his is Coni before; this is Coni after." Id. ¶ 6.
¶ 8 Once Ms. Judge discovered that her clinical photographs had been used in the story, she contacted Fox News and Saltz to ask what was going on, and the Fox News reporter told Ms. Judge that she got the photographs from Saltz. The broadcast, which was titled "Nip, Tuck and Nightmare," had already been aired on the evening news and had also been posted on the Fox News website. Ms. Judge demanded that the photographs be taken off the website immediately. Fox News removed the photographs, reedited the story, and kept the reedited version of the story (which did not include Ms. Judge's photographs) on the website.
¶ 9 On January 12, 2009, Ms. Judge filed a lawsuit against Fox News and Saltz. The claims against Fox News were dismissed pursuant to a settlement agreement. Ms. Judge alleged five causes of action against Saltz: "(1) public [ation] of private facts, (2) false light, (3) intrusion upon seclusion, (4) breach of fiduciary duty, and (5) negligent employment and supervision." Saltz moved for and was granted summary judgment on all five claims. The court of appeals subsequently reversed the grant of summary judgment for each of the five causes of action. Saltz filed a petition for writ of certiorari on July 23, 2014, and we granted review as to the following issues regarding the claims for publication of private facts and intrusion on seclusion:
1. Whether this Court should adopt the Restatement (Second) of Torts § 652D(b)
, which requires that "the matter publicized ... not [be] of legitimate concern to the public," and whether the court of appeals erred in defining and applying that provision to conclude that disputed issues of fact precluded summary judgment on Respondent's claim of publication of private facts.
2. Whether the court of appeals erred in reversing summary judgment dismissing a claim for intrusion on seclusion by holding there were disputed issues of material fact concerning the scope and meaning of a consent form signed by Respondent.
¶ 10 We adopt the Restatement's legitimate public concern element for claims for publication of private facts and affirm the court of appeals' reversal of the grant of summary judgment for publication of private facts and intrusion on seclusion.
¶ 11 Watkins v. Ford, 2013 UT 31, ¶ 18, 304 P.3d 841
(alteration in original) (internal quotation marks omitted). Because this case is on appeal from a summary judgment ruling, the court of appeals "view[ed] the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party and review[ed] the court's legal conclusions and ultimate grant or denial of summary judgment for correctness." Judge v. Saltz Plastic Surgery, PC, 2014 UT App 144, ¶ 13, 330 P.3d 126 (internal quotation marks omitted). Thus, we review the decision of the court of appeals for correctness.
¶ 12 Saltz contends that the court of appeals correctly "concluded that a plaintiff alleging ... public disclosure of private facts must demonstrate that the public has no legitimate interest in the private fact," but argues that the court of appeals erred in defining and applying that provision to conclude that disputed issues of fact precluded summary judgment on the claim for publication of private facts....
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