Young v. Jackson

• Decision Date: 07 November 1990
• Docket Number: No. 89-CA-0249,89-CA-0249
• Citation: 572 So.2d 378
• Parties: 18 Media L. Rep. 2337 Betty Dee YOUNG v. Jerome JACKSON, Individually and in his Capacity as an Employee of Bechtel Construction, Inc.; Elbert Wilson, Individually and in his Capacity as an Employee of Mississippi Power & Light Company; Bechtel Construction, Inc.; and Mississippi Power & Light Company.
• Court: Mississippi Supreme Court

Page 378

572 So.2d 378

18 Media L. Rep. 2337

Betty Dee YOUNG v. Jerome JACKSON, Individually and in his Capacity as an

Employee of Bechtel Construction, Inc.; Elbert Wilson,

Individually and in his Capacity as an Employee of

Mississippi Power & Light Company; Bechtel Construction,

Inc.; and Mississippi Power & Light Company.

No. 89-CA-0249.

Supreme Court of Mississippi.

Nov. 7, 1990.

Rehearing Denied Dec. 19, 1990.

Everett T. Sanders, Natchez, for appellant.

Roy A. Smith Jr., Holly R. Ratcliff, Daniel Coker Horton & Bell, Jackson, Edward C. Cohen, Natie P. Caraway, Wise Carter Child & Caraway, Jackson, for appellees.

Before HAWKINS, P.J., and PRATHER and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

This is yet another action arising out of the operations of the Grand Gulf Nuclear Power Station in Claiborne County, Mississippi. ¹ This invasion of privacy action arises from a public disclosure of private facts and turns on whether the Defendants exceeded the limits of their privilege to allay employee fears of unanticipated contamination hazards. The Circuit Court held Defendants' actions privileged and summarily dismissed Plaintiff's suit. For the reasons set forth below, we affirm.

II.

A.

Betty Dee Young lives in Fayette, Mississippi, in Claiborne County and in September of 1986 was employed as a decontamination laborer by Bechtel Construction, Inc., general contractor at Grand Gulf. ² On the evening of September 21, 1986, Young and two other employees were working in a highly contaminated area. Each was wearing the requisite protective gear, "PC" suits and respirators. After ascending two flights of stairs, Young told her co-workers "... that [she] I was feeling faint and hot." One of them told her to sit down and that he would help her out of the outer layer of her radiation protection suit. Young lost consciousness and later said, "I don't remember anything [after that, until] we was halfway to the [Port Gibson] hospital."

It seems that earlier that year, Young's gynecologist had diagnosed her as suffering from a fibroid tumor and on July 10, 1986, four days after Young's thirty-third birthday, she entered the Jefferson Davis Hospital in Natchez, where Dr. Thomas Purvis performed a partial hysterectomy. This surgery greatly upset Young, in the sense that, in her words, "I'm half a woman now." She said she never told her husband of the nature of the surgery nor, insofar as the record reflects, had she told anyone at the power station.

Returning to September 21, Young remained in the Port Gibson Hospital overnight and upon her release the next morning, she says she received a telephone call from Jerome Jackson, a friend who was one her co-workers with Bechtel. According to Young,

I asked him what did he want. He said, "I need to know what kind of surgery did you have." I said, "Why do you need to know that?" He said, "NRC [Nuclear Regulatory Commission] and the safety man from Bechtel, Bill Lewis, needs to put it in your folder." I said, "Jerome," I said, "It's a personal operation I had. I don't want nobody to know." He said, "Won't nobody know but NRC and the safety man." So NRC would know Betty Young as a number. So I told him, "Please don't tell nobody. My husband don't know, and I don't want nobody to know it." And he told me that he wouldn't. He gave me his word that he wouldn't tell nobody, but the safety man and NRC. And he asked me what kind of operation again. And I said, "Jerome, you got to give me your word that you won't tell nobody." And he gave me his word, and I trust Jerome when he told me that. And the way he said it, that if I didn't tell him, I was going to lose my job. So I told him. I said a partial hysterectomy. He asked me how to spell hysterectomy, and I told him. He said, "Well, they'll know how to spell it." And he said, "Well, okay, I hope you feel better and be soon to come back to work."

Jerome Jackson tells a somewhat different story of how he came to know of Young's hysterectomy. ³ Jackson remembers that he visited Young either a couple of days or the day after the accident while she was hospitalized at the Jefferson County Hospital. Jackson and Young exchanged greetings, and Jackson said "Betty, everybody was pretty near worried about what really went on. The employees was asking me all types of questions. They was scared." Jackson says Young replied "Oh, Jerome, ain't nothing to worry about. I just got fainty sick from my operation." Young then related to Jackson that she had recently had a hysterectomy. Jackson does not recall saying anything about the Nuclear Regulatory Commission.

The record reflects that word spread quickly throughout Grand Gulf that Young had collapsed and had to be taken to the hospital. Without accepting Mississippi Power & Light's characterization of the situation as a state of near hysteria, it is apparent that substantial rumors were afoot that Young was a victim of radiation and that many employees were worried whether they might be at risk as well. In this context, Jackson, a Bechtel employee, told Elbert (Bud) Wilson, one of his supervisors and an MP & L employee, that there wasn't anything to worry about because Young had passed out because of after-effects from her hysterectomy.

After lunch that day, Wilson called together all of the people that worked under him, all Young's co-workers, in the hope of squelching the rumors. Wilson told the workers that Young was fine as far as he knew, that she had received 200 millirems of radiation in the hair on her head, that the hospital had cut out the irradiated part of her hair, but that her hospitalization really had nothing to do with the radiation exposure but, instead, was related to a recent hysterectomy operation she had had "two to three weeks before." ⁴

Meanwhile, Young was suffering from nausea and diarrhea and sought treatment at the Jefferson County Hospital in Fayette. That same day she was transferred to the Vicksburg Hospital where she remained through September 27, 1986. While she was in the Vicksburg Hospital, Young's sister, Margaret Alexander, told her that Elbert Wilson had informed Young's co-workers that she had had a hysterectomy approximately two weeks prior to the accident.

Subsequent to her discharge from the Vicksburg Hospital, Young was again hospitalized, this time at the Jefferson County Hospital from September 30, 1986, through October 11, 1986, where she was treated for post-radiation exposure, nausea, vomiting, diarrhea, cephalgia, and dehydration. Jackson visited Young on October 3, 1986, while she was hospitalized at the Jefferson County Hospital.

B.

On September 25, 1987, Young commenced the present civil action by filing her complaint in the Circuit Court of Claiborne County, Mississippi. Young named as Defendants Jerome Jackson, individually, and Bechtel Construction, Inc., his employer, Elbert Wilson, individually, and Mississippi Power & Light Company, his employer. Young claimed that she had a legally protected right to keep completely private the fact of her partial hysterectomy and that the Defendants had invaded that right and had disseminated information of her surgery, by reason of which Young claimed she had "suffered extreme humiliation and embarrassment and has suffered severe emotional distress."

In due course the Defendants answered, admitting their disclosure of the fact of Young's partial hysterectomy but defending, inter alia, on grounds that Mississippi law afforded them a privilege to do so and that they did not exceed the scope of the privilege. Extensive discovery followed via interrogatories and depositions. Thereafter, all Defendants moved for summary judgment and on February 1, 1989, the Circuit Court granted the motions and dismissed Young's complaint with prejudice. The Court held that with respect to the qualified privilege defenses there were no genuine issues of material fact and that the Defendants were entitled to judgment as a matter of law.

Young now appeals to this Court.

III.

The positive law of this state affords each person a substantial zone of freedom which, at his election, he may keep private. The zone surrounds person and place and without his consent may not be invaded by other persons, Deaton v. Delta Democrat Publishing Co., 326 So.2d 471, 473 (Miss.1976), or by the state, In Re Brown, 478 So.2d 1033, 1039-40 (Miss.1985). We have made no effort to identify the outer limits of a person's right of privacy and certainly make none here. Suffice it to say that where, as here, the invasion is by private parties, we have recognized a right of action in at least three contexts: (1) the portrayal of Plaintiff in a false light, Prescott v. Bay St. Louis Newspapers, Inc., 497 So.2d 77, 79 (Miss.1986); (2) appropriation of Plaintiff's likeness and unpermitted use, Candebat v. Flanagan, 487 So.2d 207, 209 (Miss.1986); and (3) public disclosure of private facts, Deaton v. Delta Democrat Publishing Co., 326 So.2d at 473. It is this latter theorum that Betty Young invokes, and we accept its more precise statement in Restatement (Second) of Torts Sec. 652D (1977):

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public.

Young claims the fact that she had undergone the surgical operation known as a partial hysterectomy was a private fact and that she had the right to keep that fact private, and that no one had the right to disclose that fact to the public.

MP & L responds that an action for invasion of privacy does not lie on these facts. We are told the right protects persons only from public disclosures that would be "highly offensive ... to a reasonable ... woman." No doubt an objective test obtains. A person may not be held liable for public disclosure of facts about...