Sabrina W. v. Willman, A-94-118
| Decision Date | 21 November 1995 |
| Docket Number | No. A-94-118,A-94-118 |
| Citation | 4 Neb.App. 149,540 N.W.2d 364 |
| Parties | SABRINA W., Appellant, v. Kurtis WILLMAN, Personal Representative of the Estate of Ron Willman, deceased, doing business as Hair Affair III, Appellee. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Directed Verdict. A trial court should direct a verdict as a matter of law only when the facts are conceded, undisputed, or such that reasonable minds can draw but one conclusion therefrom.
2. Directed Verdict: Appeal and Error. If there is any evidence which will sustain a finding for the party against whom the judgment is made, the case may not be decided as a matter of law.
3. Mental Distress. Severe emotional damage is an element of intentional infliction of mental distress and negligent infliction of mental distress.
4. Invasion of Privacy: Liability. Any person, firm, or corporation that trespasses or intrudes upon any natural person in his or her place of solitude or seclusion, if the intrusion would be highly offensive to a reasonable person, shall be liable for invasion of privacy.
5. Invasion of Privacy: Mental Distress: Damages. A plaintiff can collect general damages for any symptom or side effect caused by an intrusion or resultant emotional distress or suffering or mental anguish or nervousness affecting one's personal or professional life, fright or shock, any physical discomfort or injury resulting from the emotional distress, headaches, embarrassment, anxiety, sleeplessness, depression, adverse impact on marital or family relationships including loss of consortium), increased use of alcohol, shame, humiliation, and feelings of powerlessness.
6. Invasion of Privacy. A plaintiff may make a claim for reputational injury precipitated by or proximately resulting from an intrusion.
7. Damages. Nominal damages are awarded, not as compensation for pecuniary loss, but in recognition of a legal wrong where there is no proof of actual damages.
8. Invasion of Privacy: Mental Distress: Damages: Juries. In an action for invasion of privacy pursuant to Neb.Rev.Stat. § 20-203 (Reissue 1991), the damages that a plaintiff may recover are (1) general damages for harm to the plaintiff's interest in privacy which resulted from the invasion; (2) damages for mental suffering; (3) special damages; and (4) if none of these are proven, nominal damages. The amount of damages should almost always be in the hands of the jury.
9. Rules of Evidence. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence.
10. Trial: Expert Witnesses: Appeal and Error. A trial court's ruling in receiving or excluding an expert's testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion.
11. Mental Health: Expert Witnesses. The rule that only a medical doctor may testify concerning mental conditions has deteriorated, and qualified psychologists are allowed to testify concerning mental conditions.
12. Venue. Neb.Rev.Stat. § 25-410 (Reissue 1989) provides for a change of venue for the convenience of the parties and the witnesses or in the interest of justice.
13. Affidavits: Evidence: Appeal and Error. Even though the law permits the use of affidavits in consideration of motions, the affidavit must be offered and received into evidence for an appellate court to consider such evidence.
14. Records: Appeal and Error. It is incumbent upon the appellant to present a record which supports the errors assigned; absent such a record, the decision of the lower court will generally be affirmed.
15. Venue: Appeal and Error. Where the record does not show an abuse of discretion, a ruling on a motion to transfer venue will not be disturbed on appeal.
Siegfried H. Brauer III, of Ross, Schroeder, Brauer & Romatzke, Kearney, for appellant.
O. William VonSeggern, of Grimminger & VonSeggern, Grand Island, for appellee.
Susan C. Williams, of Murphy, Pederson, Waite & Williams, North Platte, for amicus curiae Nebraska Federation of Business & Professional Women.
This is an invasion of privacy action under Neb.Rev.Stat. § 20-203 (Reissue 1991) brought by the plaintiff, Sabrina W., against Ron Willman, doing business as Hair Affair III. Notwithstanding Willman's admission of liability, the trial court directed a verdict for Willman because the judge concluded plaintiff was required to prove she suffered severe emotional distress as a result of the invasion of privacy in order to recover and found that she failed to do so. Plaintiff appeals. We conclude that a plaintiff need not prove severe emotional distress in order to recover for an invasion of privacy and that the evidence was sufficient for the jury to determine damages, and therefore, we reverse the trial court's judgment and remand the cause for a new trial.
On May 3, 1989, plaintiff brought this action, but it was delayed due to Willman's bankruptcy. The trial was had on January 5 and 6, 1994, and Willman has since died. The case has been revived against his estate. At trial, the parties stipulated that Willman was liable and that the only issue to be tried would be damages. The following facts have been summarized from the record and the stipulation:
During March or early April 1989, plaintiff, who at the time was a 23-year-old single mother, purchased a membership to a tanning facility from Willman, the owner of the Hair Affair III hair salon located in Grand Island, Nebraska. The tanning room in the hair salon had a door which locked from the inside. Willman allowed plaintiff to use the facility before normal business hours, when Willman was the only person operating the facility.
Prior to April 14, 1989, plaintiff used the facility several times. Willman had constructed the tanning room so as to permit him to view any occupant, including plaintiff, without his or her knowledge. Willman secretly watched and photographed her while she was in various stages of undress and nude in the tanning room. Plaintiff never consented to any of Willman's actions, nor was she aware of his voyeuristic desires. Willman then took the film to a commercial developing facility in Hastings, Nebraska. Upon developing the film, an employee of the facility notified the Hastings Police Department of the nature of these photographs. The Hastings Police Department confiscated the photographs when Willman attempted to take delivery of them. The Hastings Police Department then notified and delivered the pictures to the Grand Island Police Department. Lt. Bradley Brush of the Grand Island Police Department notified plaintiff that she had been photographed by Willman while she was using the tanning facility.
The evidence on damages consists mostly of plaintiff's own testimony. She learned of Willman's actions when she went to the police station at the request of the police to identify herself as the subject of some of the photographs. She testified to the details of her shock upon learning of Willman's conduct and of the photographs. She testified that she was shocked, humiliated, and embarrassed and that she felt degraded by the matter. When Brush showed her the photographs, she cried. She also testified to the details of how some of her family members The harassment from other employees at work was sufficiently severe that she asked her employer to call a meeting of the employees to tell them to stop harassing her, but this was ineffective, and eventually she left that employment. She had to have her telephone number changed to avoid obscene telephone calls. Her former husband charged she was unfit to have the custody of her child because of the incident. On several occasions, she overheard people talking about her with reference to the Willman matter. As a result, she felt humiliated and embarrassed and suffered mentally. She started drinking more to escape her problems. She was afraid to use a public dressing room or stay in a motel room. The incident affected her attitude toward men, her interest in them, and their interest in her. She gained weight.
friends, fellow workers, and acquaintances treated her after it became known that she was one of the subjects of Willman's conduct. Some of the comments were poor attempts at humor; others were uncharitable or even vicious. Directly or indirectly, the actions of many such people charged or implied that plaintiff had consented or had cooperated with Willman, or at the very least that she was stupid for not having learned what Willman was doing. Men made indecent proposals to her, apparently upon the assumption that the matter indicated her morals were low.
She found that after the incident she recalled that she was sexually abused as a young child. She became angry at her family members, and she had trouble dealing with her feelings. In 1992, she sought counseling from Robert Bednar, a certified counselor.
Other witnesses also testified about their observations of plaintiff's demeanor after the incident, but since this evidence is in the nature of corroboration it is unnecessary to summarize it in this opinion.
At the conclusion of plaintiff's evidence, the trial court granted the directed verdict, citing the following reasons: (1) Plaintiff failed to show that she suffered severe emotional distress, and (2) the evidence in this case is such that the jury could not determine damages, if any, except by speculation and conjecture.
Plaintiff alleges five errors which can be summarized as the trial court erred in (1) directing a verdict against her and dismissing her cause of action, (2) requiring plaintiff to prove severe emotional distress, (3) refusing to allow certain evidence offered, and (4) granting Willman a change in venue.
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