Nelson v. Maine Times

CourtSupreme Judicial Court of Maine (US)
Citation373 A.2d 1221
Parties2 Media L. Rep. 2011 Lorraine NELSON et al. v. Maine TIMES.
Decision Date03 June 1977

Page 1221

373 A.2d 1221
2 Media L. Rep. 2011
Lorraine NELSON et al.
Maine TIMES.
Supreme Judicial Court of Maine.
June 3, 1977.

Page 1222

Kenneth C. Thompson, Old Town, for plaintiffs.

Preti & Flaherty by David M. Cohen, Peter H. Rysman, Portland, for defendant.



The plaintiffs have appealed from a Superior Court ruling granting the defendant's motion to dismiss their complaint for 'failure to state a claim upon which relief can be granted'. Rule 12(b)(6), M.R.C.P.

We deny the appeals.

The plaintiffs, mother and minor son, are both described in the complaint as 'members of the Penobscot Tribe of Indians and reside on the Penobscot Tribal Indian Reservation, Indian Island, Old Town.'

The defendant is a newspaper published and circulated within the State of Maine, including the area of the State in which the plaintiffs live.

On February 16, 1973, the defendant published a picture of the infant plaintiff. This was done 'without his consent or authorization or the consent or authorization of his mother.' 1

The infant plaintiff contends that the publication of this photograph 'invaded the seclusion of his private life and exploited his likeness and his heritage as a member of the Penobscot Nation or Tribe of Indians.' He sought both compensatory and punitive damages.

Mrs. Nelson sought compensatory damages for her 'mental suffering and humiliation' since the 'unauthorized use of her son's picture . . . outraged and shocked her, she being a woman of ordinary sensibilities.'

We have frequently stated our reservations surrounding the use of 12(b)(6) motions. See Ace Ambulance Service, Inc. v. City of Augusta, 337 A.2d 661, 662 (Me.1975); Jones v. Billings, 289 A.2d 39, 40-41 (Me.1972); Richards v. Ellis, 233 A.2d 37, 38 (Me.1967). We would have serious doubts concerning the accuracy of the ruling, considering the theoretical amendability of the

Page 1223

infant plaintiff's complaint, were it not for the fact that at oral argument it was agreed by plaintiffs' counsel that the complaint could not be amended in any substantial manner to allege facts other than those recited therein. Furthermore, both counsel concurred that Rule 12(b)(6) was an appropriate vehicle to raise the issue sought to be determined. Neither brief suggests otherwise.

We now turn to the merits of the appeals.

In the recent case of Estate of Berthiaume v. Pratt, M.D., 365 A.2d 792, 795-96 (Me.1976), we recognized for the first time four kinds of interests, the invasion of which may give rise to a tort action for breach of another person's right to privacy. Although enumerated otherwise in Berthiaume, we restate these interests as set forth more recently in Restatement (Second), Torts § 652A at 376: 2

'(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.

(2) The right of privacy is invaded by

(a) unreasonable intrusion upon the seclusion of another, as stated in § 652B; or

(b) appropriation of the other's name or likeness, as stated in § 652C; or

(c) unreasonable publicity given to the other's private life, as stated in § 652D; or

(d) publicity that unreasonably places the other in a false light before the public, as stated in § 652E.'

We view the infant plaintiff's complaint as an attempt to state a cause of action under three of the four grounds set forth above, which we will discuss separately.


An Intrusion Upon the Seclusion of Another

Restatement (Second), Torts § 652B provides:

'One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.'

In Berthiaume we recognized that it is an actionable tort to make an unauthorized intrusion upon a person's physical or mental solitude or seclusion. This concept requires proof of an actual invasion of 'something secret, secluded or private pertaining to the plaintiff'. Id. 365 A.2d at 795. It is not alleged that Maine Times physically intruded upon the plaintiff's 'solitude or seclusion.'

In Berthiaume the defendant made an uninvited entry into the hospital room of a dying person for the express purpose of taking unauthorized photographs, facts which are easily distinguishable from those now before us.

As is made clear by the comments and illustrations in Restatement (Second) of Torts, at 378-80, a complaint should minimally allege a physical intrusion upon premises occupied privately by a plaintiff for purposes of seclusion. See Froelich v. Werbin, 219 Kan. 461, 548 P.2d 482, 485 (1976). This complaint makes no such allegation.

Additionally, there is no averment that the publication of the picture was at all offensive to the plaintiff, although this segment of the tort clearly requires proof that the invasion be highly offensive to the ordinary reasonable man. See Restatement, supra, comment d at 380.


An Appropriation of Another's Likeness

Restatement (Second), Torts § 652C provides:

Page 1224

'One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.'

Was this admitted publication for the purpose of appropriating benefits associated with the picture of the infant plaintiff by the Maine Times? See, e. g., Zacchini v. Scripps-Howard Broadcasting Co., 47 Ohio St.2d 224, 351 N.E.2d 454, 458 (1976). We do have the benefit of the photograph. It depicts...

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