406 P.3d 1271
Wyo.2017Background
- Plaintiffs Howard, Kinion, and Winn sue Aspen Way for invasion of privacy in Wyoming circuit court based on alleged monitoring software that tracked location, activated webcams, and captured screenshots/keystrokes on leased computers.
- Aspen Way answered and moved for summary judgment arguing Wyoming does not recognize a privacy tort; circuit and district courts agreed.
- Courts certified questions and eventually held privacy claims were not recognized in Wyoming, prompting petitions for writ of review.
- Wyoming Supreme Court reverses, recognizing intrusion upon seclusion as defined by Restatement (Second) of Torts § 652B and remanding for further proceedings.
- Court discusses policy considerations, state privacy interests, and Wyoming statutes protecting privacy, concluding the Restatement-based tort is compatible with Wyoming law.
- There have been no factual findings on elements or damages, so the case is remanded to develop the record consistent with this decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wyoming recognizes invasion of privacy as a tort | Howard argues Wyoming recognizes intrusion upon seclusion under Restatement §652B. | Aspen Way argues Wyoming does not recognize a privacy tort. | Wyoming recognizes intrusion upon seclusion as Restatement §652B. |
| Whether Wyoming adopts Restatement §652B elements for intrusion upon seclusion | Elements of intrusion upon seclusion apply as defined in Restatement §652B. | Wyoming should not adopt Restatement-based elements without legislative action. | Restatement §652B elements are adopted; factual development required for application to present case. |
| Whether genuine issues of material fact preclude summary judgment | There are genuine issues about intrusion, damages, and breach-related claims. | No genuine issues; privacy claims should be decided as a matter of law. | Remand for further proceedings to develop the factual record consistent with the decision. |
Key Cases Cited
- Baker v. Speaks, 334 P.3d 1219 (Wyo. 2014) (summary judgment is not a substitute for factual development when Restatement-based exceptions apply)
- McCormack v. Oklahoma Publishing Co., 613 P.2d 737 (Okla. 1980) (common law evolution and flexibility of the tort)
- Goodrich v. Waterbury Republican-American, Inc., 448 A.2d 1317 (Conn. 1982) (recognition of evolving privacy torts under common law)
- Katz v. United States, 389 U.S. 347 (U.S. Supreme Court 1967) (privacy expectations and limits of Fourth Amendment)
- Western Gas Processing, Ltd., 786 P.2d 866 (Wyo. 1990) (Wyoming privacy rights and constitutional considerations)