Staruski v. Continental Telephone Co. of Vt.

Decision Date13 July 1990
Docket NumberNo. 88-474,88-474
Citation154 Vt. 568,581 A.2d 266
PartiesCynthia STARUSKI v. CONTINENTAL TELEPHONE CO. OF VERMONT.
CourtVermont Supreme Court

Parker & Ankuda, P.C., Springfield, for plaintiff-appellant.

Allan R. Keyes of Ryan Smith & Carbine, Ltd., Rutland, for defendant-appellee.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

MORSE, Justice.

This tort case presents an issue of first impression in this state: May a person recover for wrongful invasion of privacy when her employer, without her consent, runs an advertisement in publicly circulated newspapers displaying her name and photograph and a text, falsely attributed to her, that praises the employer? The trial court ruled that she may not. We disagree, and accordingly reverse and remand.

In August 1985, Continental Telephone Company of Vermont (Contel) ran a series of advertisements in Vermont newspapers featuring certain of its employees. Plaintiff, a sales and service representative at Contel's office in Springfield, Vermont, was featured in one such ad. The ad included a photograph of the plaintiff smiling broadly, the words "Hi, I'm Cindy Staruski" in large letters beside the photograph, and an accompanying text, attributed with quotation marks to Ms. Staruski, describing her job responsibilities and opining that "it has been exciting and reassuring to know that Continental continues to expand its equipment and services to meet its obligation to serve you." 1 Upset by Contel's publication of her name and likeness in this manner, plaintiff sued in tort for invasion of privacy. 2

Three issues of relevance to this appeal were in dispute at trial. First, contrary to plaintiff's testimony, Contel maintained that it had her express or implied consent to publish the ad. The trial judge, however, ruled that plaintiff had not given consent, noting the absence of any evidence that she saw the ad before publication or knew that it would contain text attributed to her, and instructed the jury accordingly. Second, the nature of the tort of invasion of privacy was disputed. Concluding that publication of plaintiff's photograph, name and job description, even without her consent, was permissible--that is, not tortious as a matter of law--the trial court limited her evidence on damages to those flowing from publication of the final paragraph of the advertisement (referred to at trial as the "testimonial" section). As to that paragraph, the court instructed the jury that its publication without consent was tortious as a matter of law. Third, the question whether a corporation may be liable for punitive damages in these circumstances was contested. The court allowed the jury to decide whether to award punitive damages.

The jury reached a verdict for plaintiff of $1,000 in compensatory damages and $3,500 in punitive damages. The trial judge, however, granted defendant's motion for a judgment notwithstanding the verdict (JNOV), on the ground that plaintiff, not being famous, was unable to prove that her name and identity had commercial value. Plaintiff appeals from the JNOV and additionally claims error in the court's ruling limiting the scope of evidence on damages to those flowing only from the "testimonial" portion of the ad. Defendant in turn maintains that the JNOV is warranted and, in the event the JNOV is reversed by this Court, also contests the punitive damages and argues for a new trial on the grounds that the question of consent should have gone to the jury and that the court erred in ruling that the "testimonial" section constituted an invasion of privacy as a matter of law. 3

We reverse the JNOV, find that both parties were prejudiced by trial errors, and accordingly remand for a new trial.

I.

"Invasion of privacy" is a term applied to several distinct types of harm. See generally W. Keeton, Prosser and Keeton on Torts § 117 (5th ed. 1984) [hereinafter Prosser and Keeton]. This lawsuit concerns one of these, "the appropriation, for the defendant's benefit or advantages, of the plaintiff's name or likeness." Id. at 851. The incidental use of a person's name is not of course grounds for liability. "It is only when [the defendant] makes use of the name to pirate the plaintiff's identity for some advantage of his own ... that he becomes liable." Id. at 852; see Moore v. Big Picture Co., 828 F.2d 270, 272, 275 (5th Cir.1987).

Vermont has no statute providing a cause of action for invasion of privacy and, to date, the tort has been recognized only obliquely in the case law of this state. In Lemnah v. American Breeders Service, Inc., 144 Vt. 568, 574, 482 A.2d 700, 704 (1984), this Court considered two other forms of the tort--unreasonable publicity given to a person's private life and publicity that unreasonably places the person in a false light. In holding that the plaintiff had failed to establish the "publicity" element of these torts, we followed the American Law Institute's Restatement (Second) of Torts (1977), but noted that we were applying only "the law as instructed" since "[t]here was no dispute among the parties that the law as expressed in the Restatement would control," and therefore we would not "address the general question of what elements comprise the tort of invasion of privacy in Vermont." Id. at 574 n. 1, 482 A.2d at 704 n. 1.

In the present case, the trial judge also drew his jury instructions from the Restatement (Second) of Torts, notably § 652C: "One who appropriates to his [or her] own use or benefit the name or likeness of another is subject to liability to the other for invasion of his [or her] privacy." Section 652C restates the rule as it has evolved since the early years of the century in New York and Georgia and as it has since been recognized in the case law or statutes in virtually all jurisdictions. See Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70, 82 (W.Va.1984); Prosser and Keeton, at 850-51; Felcher & Rubin, Privacy, Publicity, and the Portrayal of Real People by the Media, 88 Yale L.J. 1577, 1581-82 (1979). 4 In the exercise of our power as a common law court, see Hay v. Medical Center Hospital of Vermont, 145 Vt. 533, 542-44, 496 A.2d 939, 944-45 (1985), we now hold that a damage remedy for invasion of privacy by the appropriation of a person's identity, at least when done for commercial purposes, should be available in appropriate circumstances in Vermont as in other states.

II.

In granting the motion for a JNOV, the trial judge reasoned: "I don't think you can have appropriation by putting in the name and face of a person who has no fame." In our view, this construes the tort too narrowly.

Fame of the person whose identity is appropriated has never been a prerequisite to recovery for invasion of privacy. One of the leading cases establishing a right of action for invasion of privacy by appropriation of likeness, Pavesich v. New England Life Insurance Co., 122 Ga. 190, 217, 50 S.E. 68, 79 (1905), involved the unauthorized use in an advertisement by an insurance company of a photograph of the plaintiff, who "was in no sense a public character." Recent cases applying Restatement (Second) of Torts § 652C also permit recovery although the plaintiff was not famous. For example, in Tellado v. Time-Life Books, 643 F.Supp. 904, 909 (D.N.J.1986), the court held that a publisher may be liable for misappropriation of likeness for using a photograph of the plaintiff, without his permission, in promotional material for a series of books on the Vietnam War. The photograph showed the plaintiff as an anguished soldier in Vietnam, but neither his name nor his face were well known to the public. The cause of action, the court ruled, is not limited to famous individuals. 5

Plaintiff was not obligated to prove a specific pecuniary value of her name, photograph and "testimonial," either as a measure of Contel's benefit or of her own damages. Damages are not presumed, however; plaintiff was required to show that she was harmed by defendant's conduct, as her testimony indeed tended to show. The action is similar in this sense to certain defamation actions where plaintiffs must show "actual loss" although they are relieved of the burden of proving pecuniary loss or "special damages." See Ryan v. Herald Ass'n, Inc., 152 Vt. 275, 286, 566 A.2d 1316, 1322 (1989). Thus, for example, in Faber v. Condecor, Inc., 195 N.J.Super. 81, 90-91, 477 A.2d 1289, 1294-95 (App.Div.1984), the court upheld a jury verdict for a family (not famous) whose privacy was invaded by a manufacturer of picture frames that used the family's photograph without permission in its frames displayed for sale: "Plaintiffs' testimony concerning their displeasure with the picture's appearance in defendant's frames and the mental distress they suffered established the damage element of their cause of action. Damages may be recovered for invasion of privacy, even if the injury suffered is mental anguish alone." See also Moore v. Big Picture Co., 828 F.2d at 276-77; Restatement (Second) of Torts § 652H.

In addition to proving harm to herself, plaintiff also was required to prove a benefit to the defendant, although, as we have noted, a dollar amount need not be established. Comment c to § 652C in the Restatement explains that "the defendant must have appropriated to his own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the plaintiff's name or likeness." The evidence in the record amply demonstrates that Contel sought to reap the fruits of plaintiff's prestige and standing as a "happy" employee, as she was portrayed in the ad, despite its protestations that the ad was designed to convey only a "public service" message. Plaintiff's expert testified that this sort of advertising is "one of the most effective kinds," "more valuable than straight advertising saying we give good service." When asked by defendant's counsel why he didn't "print up pictures of anonymous people with a...

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