Miller v. Motorola, Inc.

• Decision Date: 23 July 1990
• Docket Number: No. 1-89-1178,1-89-1178
• Citation: 148 Ill.Dec. 303,560 N.E.2d 900,202 Ill.App.3d 976
• Parties: , 148 Ill.Dec. 303, 59 USLW 2120, 5 IER Cases 885 Joy V. MILLER, Plaintiff-Appellant, v. MOTOROLA, INC., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 900

560 N.E.2d 900

202 Ill.App.3d 976, 148 Ill.Dec. 303,

59 USLW 2120,

5 IER Cases 885

Joy V. MILLER, Plaintiff-Appellant, v. MOTOROLA, INC., Defendant-Appellee.

No. 1-89-1178.

Appellate Court of Illinois,

First District, First Division.

July 23, 1990.

Stanley H. Jakala, Berwyn, for plaintiff-appellant.

Wildman, Harrold, Allen & Dixon, Chicago (Michael L. McCluggage, Georgia L. Vlamis, Michael J. Bolton, of counsel), for defendant-appellee.

Presiding Justice BUCKLEY delivered the opinion of the court:

Joy V. Miller (plaintiff) filed an action in the circuit court of Cook County against her employer, Motorola, Inc. (defendant), seeking recovery for damages resulting from defendant's disclosure of her mastectomy surgery to plaintiff's co-employees. Plaintiff appeals from the circuit court's order dismissing her complaint with prejudice pursuant to section 2-615 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-615), contending that her pleadings support claims for the torts of public disclosure of private facts and unreasonable intrusion into the seclusion of another.

Plaintiff's asserted claims comprise two of the four branches of the common law torts for the invasion of privacy rights as set forth in the Restatement (Second) of Torts: (1) an unreasonable intrusion upon the seclusion of another; (2) an appropriation of another's name or likeness; (3) a public disclosure of private facts; and (4) publicity which reasonably places another in a false light before the public. (Restatement (Second) of Torts §§ 652B, 652C, 652D, 652E at 378-94 (1977); W. Prosser & W. Keeton, Torts § 117, at 849-69 (5th ed. 1984).) The few Illinois appellate courts which have confronted claims under the public disclosure branch have recognized the cause of action (Midwest Glass Co. v. Stanford Development Co. (1975), 34 Ill.App.3d 130, 339 N.E.2d 274; Geisberger v. Willuhn (1979), 72 Ill.App.3d 435, 28 Ill.Dec. 586, 390 N.E.2d 945), while the appellate courts facing claims under the intrusion branch disagree regarding whether such a cause of action should be recognized in Illinois (compare Mucklow v. John Marshall Law School (1988), 176 Ill.App.3d 886, 126 Ill.Dec. 314, 531 N.E.2d 941 (recognizing an intrusion cause of action); Melvin v. Burling (1986), 141 Ill.App.3d 786, 95 Ill.Dec. 919, 490 N.E.2d 1011 (recognizing an intrusion cause of action); Bank of Indiana v. Tremunde (1977), 50 Ill.App.3d 480, 8 Ill.Dec. 57, 365 N.E.2d 295 (implicitly recognizing an intrusion cause of action); with Kelly v. Franco (1979), 72 Ill.App.3d 642, 28 Ill.Dec. 855, 391 N.E.2d 54 (intrusion cause of action not recognized); Bureau of Credit Control v. Scott (1976) 36 Ill.App.3d 1006, 345 N.E.2d 37 (intrusion cause of action not recognized)).

Considering first plaintiff's public disclosure claim, this cause of action is defined by the Restatement (Second) of Torts as follows:

"One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of a legitimate concern to the public." (Restatement (Second) of Torts, § 652D (1977).)

To state a cause of action for this tort, the plaintiff must plead and prove that (1) publicity was given to the disclosure of private facts; (2) the facts were private, and not public, facts; and (3) the matter made public was such as to be highly offensive to a reasonable person. (W. Prosser, Torts 856 (5th Ed.1984).) The parties here dispute whether the first and third requirements have been adequately plead.

Plaintiff's complaint alleges that she consulted with defendant's resident nurse, Felicia Masters, relative to three leaves of absence taken by plaintiff from 1984 to 1986 to undergo mastectomy and reconstructive surgeries and that Masters advised her during those consultations that her medical information would be confidential. The complaint further alleges that plaintiff, who did not consent to the release of any of her medical information which was maintained at defendant's place of business, was told by a co-employee on or about October 1, 1987, that she had been informed of plaintiff's mastectomy. As a result of defendant's disclosure and plaintiff's belief of the awareness by numerous other employees of her condition, the complaint alleges that plaintiff suffered severe physical, mental and emotional distress and took an early retirement from her 23-year employment with defendant.

Defendant argues that these allegations are insufficient to show that any private facts were publicized because Illinois law requires the disclosure be widespread and that the communication be written. The sole Illinois authority cited by defendant to support its assertion is Midwest Glass Co. v. Stanford Development Co. (1975), 34 Ill.App.3d 130, 339 N.E.2d 274, where the court found the plaintiff's allegations of defendant's oral and written communications to persons having an interest in certain condominium units regarding the plaintiff real estate company's failure to pay for mirrors installed by defendant in the units did not state a cause of action for the public disclosure of a private debt. Citing cases from other jurisdictions, the court noted that oral communications cannot be a basis for an invasion of privacy action involving attempts to collect debts. The court, after stating that the privacy right is subject to limitations where legitimate interests are involved and acknowledging the creditor's right to take reasonable action to persuade payment, further noted that the notices of indebtedness there were disseminated not to the general public but only to a limited number of persons who had a natural and proper interest in the ability and reputation of plaintiff to pay its debt. Midwest, 34 Ill.App.3d at 134-35, 339 N.E.2d at 277-78.

We do not read Midwest as establishing the general elements asserted by defendant for meeting the publicity requirement in all public disclosure cases. Rather, the decision appears to be an attempt to reconcile a person's privacy rights with the legitimate interests of creditors and other interested parties to a person's indebtedness. As Illinois courts have not yet delved into the necessary elements to establish the "publicity" requirement in public disclosure cases, we will turn to other authorities to assist our determination here.

The comments to the Restatement (Second) of Torts states the following as to the publication requirement:

"[Public disclosure] * * * means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. * * *.

Thus it is not an invasion of the right of privacy * * *, to communicate a fact concerning the plaintiff's private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give...