Schifano v. Greene County Greyhound Park, Inc.

• Decision Date: 16 July 1993
• Citation: 624 So.2d 178
• Parties: 21 Media L. Rep. 1794 Sam SCHIFANO and Joseph Schifano v. GREENE COUNTY GREYHOUND PARK, INC. 1920759.
• Court: Alabama Supreme Court

Page 178

624 So.2d 178

21 Media L. Rep. 1794

Sam SCHIFANO and Joseph Schifano v. GREENE COUNTY GREYHOUND PARK, INC.

1920759.

Supreme Court of Alabama.

July 16, 1993.

Mitch Damsky, Birmingham, for appellants.

Michael S. Burroughs and Sandra C. Guin of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee.

RICHARD L. JONES, Retired Justice.

The plaintiffs, Sam and Joseph Schifano, appeal from a summary judgment entered in favor of the defendant, Greene County Greyhound Park, Inc. ("the Park"), on the plaintiffs' claims of invasion of privacy. We affirm.

Sam Schifano and Joseph Schifano visited the Greene County Greyhound Park several times in the early 1980's and participated in the Park's activities. During one of their visits, the plaintiffs were photographed as they sat in the "Winner's Circle," a section of the Park that can be reserved by interested groups. The Park printed the photograph on a page in an advertising brochure; the page described the Winner's Circle, the special services offered in that area, and how to reserve it. The text of the brochure did not refer to the persons in the photograph, either by name or by implication, and the photograph in which the plaintiffs were pictured was one of several photographs in the brochure illustrating various Park services and activities.

The plaintiffs learned of the use of the photograph and sued the Park for damages, alleging invasion of privacy. On December 30, 1991, the Park filed a motion for summary judgment, and it submitted its brief, exhibits, and affidavits in support of the motion on January 24, 1992. The court set a hearing date of March 2, 1992; however, on February 18, 1992, the plaintiffs' lawyer filed a motion to continue the hearing, stating that he would be unavailable on March 2. On February 26, the court reset the hearing for March 5 at 1:00 p.m. The record reflects that the plaintiffs filed affidavits in opposition to summary judgment, in open court, on March 5 at 1:00 p.m.

On March 24, 1992, the trial court entered a summary judgment for the Park, holding that the plaintiffs were not entitled to pursue their invasion of privacy claims against the Park. Alternatively, the court held that the evidence supported the Park's defense that the plaintiffs had consented to the Park's taking and using the photograph, and that the plaintiffs' affidavits denying consent were untimely filed and could not be considered.

On appeal, the plaintiffs argue 1) that the trial court erred in holding that the plaintiffs were not entitled to pursue their invasion of privacy claims; and 2) that the trial court abused its discretion in refusing to consider the plaintiffs' affidavits in opposition to the Park's motion for summary judgment (the substance of which, claim the plaintiffs, created the "genuine issue of material fact" necessary to defeat the motion).

With regard to the plaintiffs' first argument, we note that the claims set out in the complaint were based on alternative theories of the tort of invasion of privacy. The plaintiffs claimed 1) that the Park, through its brochure with the photograph of the plaintiffs, portrayed the plaintiffs in a "false light," amounting to a "wrongful intrusion" into the plaintiffs' privacy; and 2) that the Park made a "commercial appropriation" of the plaintiffs' likenesses for gain to the Park.

This Court, in Phillips v. Smalley Maintenance Services, Inc., 435 So.2d 705 (Ala.1988), adopted Restatement (Second) of Torts, § 652B (1977), and the comment thereto, as a "clear and concise definition" of the tort of "wrongful intrusion." The Phillips Court stated that § 652B, "when read in light of our own case law, affords meaningful guidelines for the adjudication of [wrongful intrusion] actions."

Section 652B provides that "[o]ne 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." (Emphasis added.) Comment a to this section states that an actionable "invasion" is an "intentional interference with [a person's] interest in solitude or seclusion." Comment c states that while normally there is no liability for photographing a person in a public place, there "may still be invasion of privacy when there is intrusion upon" certain matters that a person intends not to be "exhibit[ed] to the public gaze" (e.g., "his underwear or lack of it").

Restatement (Second) of Torts, § 652E, and the comments to that section are equally meaningful with regard to the definition of, and liability for, placing a person in a false light. Section 652E states:

"One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

"(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

"(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed."

There is nothing in the record to support the plaintiffs' claims that the Park intruded on the plaintiffs' privacy or portrayed the plaintiffs in a false light. The plaintiffs' attending Park activities and sitting in public seating at the Park negated any claim of "solitude or seclusion" on the part of the plaintiffs or intrusion into their "affairs or concerns." Similarly, the photograph of the plaintiffs in the public seating they chose to occupy can not be interpreted as being "highly offensive" to a reasonable person.

As to the plaintiffs' claim that the Park's photograph depicted the plaintiffs in a "false light," not only do we find the photograph to be unoffensive, but we note that it simply depicts a scene of normal activity at the Park. Because the photograph does not reflect false information that would be...