Day on Torts
A Tennessee plaintiff asserting a claim for invasion of privacy based on intrusion upon seclusion was not required to show actual damages, as actual damages are not an essential element of an intrusion upon seclusion claim.
In Jones v. Life Care Centers of America d/b/a Life Care Center of Tullahoma, No. M2022-00471-COA-R3-CV (Tenn. Ct. App. May 16, 2023), plaintiff was a resident at defendant nursing home, and she brought this case through her conservator based on her naked body being exposed during a video call made by a nursing home employee. Plaintiff, who was cognitively limited, was being assisted in showering by defendant’s employees. One of the employees received a video call from her boyfriend, who was incarcerated, and the employee propped the phone on a shelf and continued helping plaintiff. During the call, plaintiff’s naked body was seen on the video feed. A sheriff’s department employee was monitoring the phone call and noticed that plaintiff could be seen, and defendant was accordingly alerted. Although plaintiff was admittedly unaware that she had been exposed, and never became aware, her daughter/ conservator was informed, and this suit was filed.
Plaintiff’s initial complaint asserted a claim of “Negligence Pursuant to the Tennessee Medical Malpractice Act” and a general claim for invasion of privacy. After defendant filed a motion for summary judgment, plaintiff filed a motion seeking to amend her complaint to assert claims for invasion of privacy based on intrusion upon seclusion and negligent supervision. The trial court granted summary judgment to defendant, finding that plaintiff could not “prove the existence of any cognizable injury or damages from the incident,” and it denied plaintiff’s motion to amend, ruling that a claim for invasion of privacy requires actual damages and thus the amendment would be futile. On appeal, those rulings were reversed.
The Court of Appeals began its analysis by determining the gravamen of plaintiff’s complaint. After looking at the factual allegations here, the Court turned to the Restatement (Second) of Torts § 652A, which “outlines four distinct means by which a person’s right of privacy can be violated,” the first being an “unreasonable intrusion upon the seclusion of another[.]” The Court explained that Tennessee adopted the tort of invasion of privacy by intrusion upon seclusion in 2000, and that this tort “consists solely of an intentional interference with [plaintiff’s] interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man.” (internal citation omitted). The Court therefore ruled that the gravamen of plaintiff’s complaint was a claim for invasion of privacy based on intrusion upon seclusion.
The Court next turned to the issue of whether an intrusion upon seclusion claim requires proof of actual damages. Although a previous case had stated that an invasion of privacy claim required actual damages, that case addressed a false light claim, not an intrusion upon seclusion claim. An intrusion upon seclusion claim is “more private and intimate” than the other invasion of privacy claims. It does not require publication or “any other participants beyond the victim and her tortfeasor.” (internal citation omitted). Although there was no Tennessee case law addressing damages for intrusion upon seclusion, the Court found other persuasive authority that supported an award of nominal damages in such a case.
The Court explained:
The present case is a rare one in which Ms. Jones was unaware of the intrusion on her private affairs and, as such, provides no evidence of mental or emotional ramifications. Additionally, it is undisputed that she suffered no actual or economic damages. Even so, we would consider it a detriment to public policy to condone intrusions upon the seclusion of the most vulnerable—those unable to comprehend that the intrusion is occurring— without the possibility of redress or consequence. Further, the above authorities reveal the long-held position that the intrusion itself is the injury, that a claim for intrusion upon seclusion does not require actual damages to survive a motion for summary judgment, and that Ms. Jones is afforded the opportunity to “recover damages for the deprivation of [her] seclusion.” The Restatement treats such damages for the privacy harm of deprivation of seclusion as distinct from damages for emotional distress and personal humiliation.
(internal citations omitted).
The Court held that this was a claim for intrusion upon seclusion, and that this tort did “not require a showing of actual damages as an essential element.” Accordingly, summary judgment was reversed, and the case was remanded with instructions to allow plaintiff to amend her complaint.
Interestingly, although the plaintiff here had not yet passed away, the Court addressed the issue of whether an intrusion upon seclusion claim survives the death of the person whose privacy was invaded. Looking to the Restatement and Tennessee statutory law, it ultimately held that this intrusion upon seclusion claim was “not of a slanderous or defamatory nature that affect[ed] the character of [plaintiff],” and that the claim would therefore survive her death pursuant to Tenn. Code Ann. § 20-5-102.
This is an important case for Tennessee tort law, as it clarifies that invasion of privacy by intrusion upon seclusion claims do not require a showing of actual damages and can survive the death of the person whose privacy was invaded.
This opinion was released four months after oral arguments in this case.
Note: Chapter 68, Section 1 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.
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