ANNIE J. JONES, BY AND THROUGH HER CONSERVATORSHIP, JOYCE SONS a/k/a CALISA JOYCE SONS v. LIFE CARE CENTERS OF AMERICA d/b/a LIFE CARE CENTER OF TULLAHOMA
No. M2022-00471-SC-R11-CV
IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
February 21, 2024 Session
In
HOLLY KIRBY, C.J., delivered the opinion of the court, in which JEFFREY S. BIVINS, ROGER A. PAGE, SARAH K. CAMPBELL, and DWIGHT E. TARWATER, JJ., joined.
Alan S. Bean and K. Nicole Poole, Franklin, Tennessee, for the appellant, Life Care Centers of America, Inc. d/b/a Life Care Center of Tullahoma.
Richard D. Piliponis, Benjamin J. Miller, and Sarah L. Martin, Nashville, Tennessee, for the appellee, Calisa Joyce Sons as Administrator Ad Litem for the Estate of Annie J. Jones.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
In July 2017, Annie J. Jones became a resident of Defendant/Appellant Life Care Centers of America, Inc. d/b/a Life Care Center of Tullahoma (“Life Care“), a skilled nursing facility in Tullahoma, Tennessee. Ms. Jones had pre-existing dementia, depression, and anxiety. Her cognitive functioning was severely impaired; she required help with daily functions.
On February 12, 2019, a certified nursing aide (“CNA“) employed by Life Care was helping Ms. Jones bathe in the facility‘s shower room. The CNA received a video call from her incarcerated boyfriend; she propped her cell phone on a shelf in the shower room to continue talking with her boyfriend while she helped Ms. Jones bathe. During the call, one Life Care employee called Ms. Jones by her first name while CNAs undressed her. Ms. Jones‘s nude body was visible to the CNA‘s incarcerated boyfriend during the video call. None of the Life Care employees involved in the incident reported it to Life Care.
Meanwhile, the CNA‘s incarcerated boyfriend‘s video visitation was being monitored, and the person reviewing his communications saw the video of the call with the Life Care CNA, including Ms. Jones‘s nude body. The video was reported to law enforcement, who identified the CNA whose boyfriend placed the video call.
On February 13, 2019, the day after the incident, law enforcement notified Life Care of the incident, including the identity of the CNA who took the video call.1 Life
As part of their investigation, Life Care assessed Ms. Jones. She was examined by a physician and interviewed by social services. The record contains no indication that Ms. Jones ever mentioned the shower incident, nor any indication that anyone mentioned it to her. By the time the shower incident occurred, Ms. Jones‘s dementia was advanced. She showed no signs of increased anxiety or distress from the incident.
On February 14, the day after Life Care learned of the shower incident, a supervisor at Life Care telephoned Ms. Jones‘s daughter and conservator, Plaintiff/Appellee Joyce Sons.2 Ms. Sons was informed that a video recorded by a CNA showed Ms. Jones in the background. About a week later, the same supervisor called Ms. Sons and told her that the incident involved a video call between a CNA and her incarcerated boyfriend that showed Ms. Jones in the shower. On March 4, 2019, Life Care‘s Interim Executive Director sent Ms. Sons a letter reporting the incident and Life Care‘s response. The letter said that an employee took a video call “in a patient area” in violation of policy and there was a “breach of patient privacy,” and it detailed the steps Life Care had taken:
On 2-13-19, area law enforcement notified facility staff that a breach of patient privacy had occurred when an incarcerated subject had place[d] a video call to an employee during working hours. The employee was identified as a current associate and the date 2-12-19 was confirmed a scheduled working day. . . . [The v]ideo and [Ms. Jones‘s] first name was referenced during the conversation that occurred in a patient care area.
The letter expressed regret for the “breach of protected information.”
On February 12, 2020, Ms. Sons, in her capacity as conservator of Ms. Jones (“Plaintiff“), filed a complaint against Life Care in the Circuit Court of Coffee County. The complaint alleged that the actions of the Life Care CNA in “[v]ideoing” Ms. Jones “while being showered violated her privacy and dignity.” It asserted a claim for negligence under “the Tennessee Medical Malpractice Act,
Subsequently, Plaintiff filed an amended complaint that omitted the challenge to the constitutionality of the statutory caps. The remainder of the First Amended Complaint did not change the Plaintiff‘s allegations in any way relevant to this appeal.
After discovery, Life Care filed a motion for summary judgment, based on the First Amended Complaint, asserting there was no genuine issue of material fact about “the lack of any cognizable injury under Tennessee law.” In support, Life Care attached an affidavit by its medical expert, Larry Tune, M.D.,4 and excerpts from the deposition of Ms. Sons.
Based on Ms. Jones‘s medical records, Dr. Tune opined that Ms. Jones would not have been able to understand or perceive the shower incident and consequently suffered no physical, mental, or emotional injury from it. His affidavit concluded that, “to a reasonable degree of medical certainty, . . . this incident had no impact on Ms. Jones.”
In Ms. Sons‘s deposition, she acknowledged that Ms. Jones had never mentioned the shower incident to her, and that she was not aware of anyone else telling Ms. Jones what happened. Ms. Sons conceded she could not say Ms. Jones had any physical issues, sleeplessness, depression, anxiety, or special medical treatment because of the shower incident. Life Care claimed Dr. Tune‘s affidavit and the deposition of Ms. Sons,
considered together, showed that Plaintiff cannot prove “any recoverable damages” and sought summary judgment on that basis.
In opposition to Life Care‘s motion for summary judgment, Plaintiff filed a response and a motion to amend her complaint. Plaintiff clarified she had not claimed “physical, mental, or emotional injury” but instead “claimed injuries of loss of privacy and dignity.” In support, Plaintiff presented the affidavit of medical expert Jonathan Klein, M.D.5 After reviewing Ms. Jones‘s records, Dr. Klein opined that, to a reasonable degree of medical certainty, Ms. Jones “suffered a loss of privacy and dignity due to the inadequate care and treatment provided by Life Care.”
In the alternative, Plaintiff asked the trial court to reserve its ruling on Life Care‘s summary judgment motion and permit her to amend her complaint to more explicitly allege negligent supervision and invasion of privacy by intrusion upon seclusion.6 Life Care opposed the request to amend the complaint, arguing that the proposed amendments would be futile without proof of actual injury.
In March 2022, the trial court denied Plaintiff‘s motion to amend the complaint and granted Life Care‘s motion for summary judgment. The trial court agreed with Life Care that, to defeat the motion for summary judgment, Plaintiff had to offer proof of “actual injury or loss” in the
While the case was pending in the trial court, Ms. Jones died from causes unrelated to the case. An April 2022 order substituted Ms. Sons to pursue the lawsuit as administrator ad litem of Ms. Jones‘s estate.
Plaintiff appealed. On appeal, the intermediate appellate court considered three issues: (1) whether the trial court erred in granting Life Care‘s motion for summary judgment; (2) whether the trial court erred in denying Plaintiff‘s motion to amend her
complaint to include a claim for invasion of privacy by intrusion upon seclusion and negligent supervision; and (3) whether an invasion of privacy action survives the death of the individual whose privacy was invaded.7 Jones by & Through Sons v. Life Care Ctrs. of Am., No. M2022-00471-COA-R3-CV, 2023 WL 3476523, at *2 (Tenn. Ct. App. May 16, 2023), perm. app. granted, (Tenn. Nov. 21, 2023).
As to the first issue, the Court of Appeals reversed the trial court‘s grant of summary judgment in favor of Life Care. Id. at *11. It reasoned that the gravamen of Plaintiff‘s claim is for invasion of privacy by means of intrusion upon seclusion, and it held that “actual damages are not an essential element of a claim for intrusion upon seclusion.” Id. at *7-10.8
Finally, the Court of Appeals considered the third issue of whether the Plaintiff‘s claim survived the death of Ms. Jones. Id. at *10–11. The appellate court held that it did, based on Tennessee‘s survival statute,
This Court granted Life Care‘s application for permission to appeal.
ISSUES ON APPEAL AND STANDARD OF REVIEW
Life Care applied for permission to appeal pursuant to
After this Court granted permission to appeal, Life Care filed an appellate brief in which it raised two additional issues: (1) “Did the Tennessee Court of Appeals err when it reversed the trial court‘s summary judgment award to Life Care on all of Plaintiff‘s claims when Plaintiff could not prove that Ms. Jones suffered any injuries or harm which would not otherwise have occurred?” and (2) “Did the Tennessee Court of Appeals err when it concluded the trial court abused its discretion by denying Plaintiff‘s motion to amend to add a claim for invasion of privacy?” Plaintiff/Appellee‘s responsive brief responded to the merits of all issues raised by Life Care in its brief, including the new ones.
After the appellate briefs were filed, this Court issued an order noting that Life Care‘s brief included issues not raised in its Rule 11 application. The order directed the parties to be prepared to address at oral argument whether Life Care had waived issues raised in its brief that were not included in its Rule 11 application.9
At oral argument, counsel for Life Care conceded its brief raised issues that were not included in its Rule 11 application and acknowledged caselaw indicating that, to preserve issues on appeal, appellants must include them in their Rule 11 application.
“Appellants and parties seeking relief under
Life Care is correct that, to achieve fairness and justice, the Court has discretion to consider issues that have not been properly preserved or presented. In re Kaliyah S., 455 S.W.3d at 540. That discretion, however, is sparingly exercised. Appellate review is
generally limited to issues that have been presented for review. Hodge, 382 S.W.3d at 334-35 (citing
Here, Life Care offers no compelling reason for the Court to consider issues raised in its brief that were not presented in its Rule 11 request for permission to appeal. Cf. In re Kaliyah S., 455 S.W.3d at 540 (question impacted biological parents’ fundamental constitutional right to the care and custody of their child, “an important question of law and a matter of great public interest.“). Under these circumstances, we decline to exercise our discretion to consider the additional issues Life Care raised in its brief that were not included in its Rule 11 application.11
Thus, we limit our review to the issues properly raised in Life Care‘s request for permission to appeal. In this opinion, we combine them and restate them slightly as whether the Court of Appeals correctly held that Plaintiff‘s claim for invasion of privacy by intrusion upon seclusion survived the death of Ms. Jones, the person whose privacy was invaded, under
This issue requires us to interpret a statute,
ANALYSIS
In this appeal, Life Care argues that Plaintiff‘s claim for invasion of privacy based on intrusion upon seclusion abated upon Ms. Jones‘s death. For that reason, Life Care contends, it is entitled to summary judgment.
To address this issue, we consider first the history of Tennessee‘s survival statute, with particular focus on the statutory exception for “actions for wrongs affecting the character of the plaintiff.”
Abatement Overview
Under the common law, “when a party to an action died while the case was pending[,] the action abated.” Timmins v. Lindsey, 310 S.W.3d 834, 840 (Tenn. Ct. App. 2009). See also Mid-S. Pavers, Inc. v. Arnco Const., Inc., 771 S.W.2d 420, 422 (Tenn. Ct. App. 1989); McDaniel v. Mulvihill, 263 S.W.2d 759, 761 (Tenn. 1953); Benton v. Knoxville News-Sentinel Co., 130 S.W.2d 106 (Tenn. 1939). In the early 1800s, however, Tennessee‘s General Assembly altered the common law by enacting statutes which “provid[e] for the survival of nearly every form of action.” Harris v. Nashville Trust Co., 162 S.W. 584, 587 (Tenn. 1914). See Warren v. Furstenheim, 35 F. 691, 697 (C.C.W.D. Tenn. 1888) (“[O]ur act of 1836 first established the existing rule that all suits commenced might be revived, without regard to whether the cause of action, without such suits, would have survived or not“).12 Tennessee was not alone in altering the common law on abatement. McDaniel, 263 S.W.2d at 761 (“This [common law] rule [of abatement] has been abolished by statute in perhaps all of the States.“).
The current version of Tennessee‘s “survival statute” is codified at
No civil action commenced, whether founded on wrongs or contracts, except actions for wrongs affecting the character of the plaintiff, shall abate by the
death of either party, but may be revived; nor shall any right of action arising hereafter based on the wrongful act or omission of another, except actions for wrongs affecting the character, be abated by the death of the party wronged; but the right of action shall pass in like manner as the right of action described in § 20-5-106.
West and the Restatement (Second) of Torts
Life Care argues first that
In West, the United States District Court for the Eastern District of Tennessee certified to this Court the question of “whether Tennessee recognizes the separate tort of false light invasion of privacy.” Id. at 643. As background to consider that question, the Court in West briefly recounted the history of “[t]he protection of privacy rights,” noting that Dean William L. Prosser‘s “analysis of invasion of privacy resulted in the classification of that tort into four separate causes of action,” each of which represented a different type of “interference with the right of the plaintiff ‘to be let alone.‘” Id. at 642 (citing William L. Prosser, Privacy, 48 Calif. L. Rev. 383 (1960); William L. Prosser, Law of Torts § 117 (4th ed. 1971). West quoted Section 652A of the Restatement (Second) of Torts (Am. L. Inst. 1977), which set out and described the “four categories” of invasion of privacy:
(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.
(2) The right of privacy is invaded by:
(a) unreasonable intrusion upon the seclusion of another, as stated in § 652B; or
(b) appropriation of the other‘s name or likeness, as stated in § 652C; or
(c) unreasonable publicity given to the other‘s private life, as stated in § 652D; or
(d) publicity that unreasonably places the other in a false light before the public, as stated in § 652E.
Id. at 643 (quoting Restatement (Second) of Torts § 652A (Am. L. Inst. 1977)).14
West recognized the last of the four privacy torts, false light invasion of privacy, as actionable in Tennessee. Id. at 645. In describing the scope of that tort, West adopted Section 652I of the Restatement (Second) of Torts:
[F]or purposes of clarification, this Court adopts Section 652I of the Restatement (Second) of Torts (1977) which recognizes that the right to privacy is a personal right. As such, the right cannot attach to corporations or other business entities, may not be assigned to another, nor may it be asserted by a member of the individual‘s family, even if brought after the death of the individual. Restatement (Second) of Torts § 652I cmt. a-c (1977). Therefore, only those persons who have been placed in a false light may recover for invasion of their privacy.
West, 53 S.W.3d at 648. Thus, West specifically referenced Section 652I in relation to the tort of false light invasion of privacy.
Still, relying on this holding in West, Life Care urges this Court to apply, to the instant case, comment b to section 652I of
In the absence of statute, the action for the invasion of privacy cannot be maintained after the death of the individual whose privacy is invaded. In a few states particular statutes permit the survival of an action for invasion of privacy that has occurred before death . . . .
Restatement (Second) of Torts § 652I cmt. b. Life Care argues
In effect, Life Care argues that a comment to the Restatement takes primacy over the text of
Moreover, West cannot be stretched as far as Life Care urges. West adopted Sections 652F-I of the Restatement (Second) of Torts “[w]ith respect to the parameters of the tort of false light.” Id. at 648. While false light and intrusion upon seclusion are both invasion of privacy claims, they are separate torts with distinct elements. See id. at 642 (citing Prosser, Privacy, supra, at 383; Prosser, Law of Torts § 117, supra, at 804). West discussed Section 652I of the Restatement (Second) of Torts in the context of false light invasion of privacy and did not apply it to intrusion upon seclusion, the subject of this appeal.
At any rate, Comment b to Section 652I merely reflects what we have already discussed: under the common law, when a party to an action such as a tort claim died, the action abated. Timmins, 310 S.W.3d at 840. But the state of the law changed when our legislature enacted the statute now codified at
In pertinent part,
older statutes and constitutional provisions,
The wrong alleged here is the intrusion upon Ms. Jones‘s right to seclusion. The plain language in
Statutory Exception for Wrongs Affecting Character
As noted above,
Life Care contends that this statutory exception applies here because the tort of intrusion upon seclusion is in effect an action for “wrongs” that “affect[] the character” of the person whose privacy was invaded.
At the outset, we note that Tennessee courts recognize intrusion upon the seclusion of another as an actionable tortious invasion of privacy. See Givens v. Mullikin ex rel. Est. of McElwaney, 75 S.W.3d 383, 411 (Tenn. 2002), statutorily abrogated on other grounds, as recognized in Willeford v. Klepper, 597 S.W.3d 454, 462 (Tenn. 2020); Harris v. Horton, 341 S.W.3d 264, 271 (Tenn. Ct. App. 2009), overruled on other grounds by Rogers v. Louisville Land Co., 367 S.W.3d 196, 205 n.6 (Tenn. 2012); Roberts v. Essex Microtel Assocs., II, L.P., 46 S.W.3d 205, 210–11 (Tenn. Ct. App. 2000).
To determine whether the statutory exception in
suit or legal demand must be for damage or injury for a violation of the plaintiff‘s legal right.
The statutory exception applies only to judicial proceedings for wrongs “affecting the character” of the plaintiff. The word “affect” means “[t]o act upon; to produce an effect or change upon.” 1 Noah Webster, An American Dictionary of the English Language (New York, S. Converse 1828) (bit.ly/3QXHIiK).16 “Character” is defined as “the peculiar qualities, impressed by nature or habit on a person, which distinguish him from others. . . [and] . . . distinguished or good qualities; those which are esteemed and respected; and those which are ascribed to a person in common estimation.” Id. (bit.ly/4c40QVY).17
Here, Ms. Jones was not alone in her own home when the video by Life Care‘s CNA was made. Instead, she was in a facility owned by Life Care, in the presence of Life Care staff authorized to help her bathe. But, depending on the circumstances, a claimant for intrusion upon seclusion may be able to assert a “right to be let alone” even where she was not alone in her own home. As the tort is widely recognized, a defendant may be held liable if the intrusion was “into a private place or . . . a private seclusion that the plaintiff has thrown about his person or affairs.” Givens, 75 S.W.3d at 412 (quoting Restatement
(Second) of Torts § 652B cmt. c).20 The right violated “enables the right holder to fully participate in society and still exercise the right to privacy” by “empower[ing] protected persons to decide who may have access to one‘s private spaces and who is not allowed to such spaces.” Aftab, supra note 14, at 46. See generally, J. Thomas McCarthy & Roger E. Schechter, Intrusion Form of Privacy—Defining Intrusion, and Intrusion Form of Privacy—Relative Privacy, in 1 Rights of Publicity and Privacy §§ 5:89, 5:98 (2d ed. 2024).
This description of the claimant‘s legal “right to be let alone“—beyond isolation in her own home—is demonstrated in the illustrations and cases cited by section 652B of the Restatement (Second) of Torts. See, e.g., Restatement (Second) of Torts § 652B illustrations 121 and 7.22 See
upon seclusion) (cited by Restatement (Second) of Torts § 652B). Here, even though Ms. Jones was so cognitively impaired that she had to live among employees in a skilled-care facility, she nevertheless had the right not to involuntarily have her nude body put on display. And she retained that right irrespective of her character. Thus, the “right” that is violated in an intrusion upon seclusion claim does not implicate the character of the plaintiff.
In analyzing whether a claim falls within the character exception to the survival statute, our Court has considered multiple aspects of the claim, such as whether bad character can be a defense to the action. See, e.g., Weeks v. Mays, 10 S.W. 771, 771–72 (Tenn. 1889) (holding that claim abated because “the bad character of the plaintiff” was a potential defense); Hullett v. Baker, 49 S.W. 757, 758 (Tenn. 1899).
Consequently, we also consider the elements of the tort, that is, what the plaintiff is required to prove, and whether the plaintiff‘s bad character may be a defense. In Givens, the Court described the elements of intrusion upon seclusion as: “One 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.” 75 S.W.3d at 411 (quoting Roberts, 46 S.W.3d at 211–12 (quoting Restatement (Second) of Torts § 652B)). As mentioned above, the defendant may be held liable “when he has intruded into a private place or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs.” Id. at 412 (quoting Restatement (Second) of Torts § 652B cmt. c).
As can be seen, proof of these elements revolve around whether the defendant intentionally “intruded into” the claimant‘s “private place” or “otherwise invaded a private seclusion” that the claimant had “thrown about his person or affairs,” and whether “the intrusion would be highly offensive to a reasonable person.” Id. at 411–12 (quoting Restatement (Second) of Torts § 652B cmt. a & cmt. c). The plaintiff need not present proof of either publication or use of the information acquired by the tortfeasor. “No especial publicity needs to be given to the plaintiff or to the plaintiff‘s affairs . . . .” Id. at 411 (citing Restatement (Second) of Torts § 652B cmt. a)). See also Roberts, 46 S.W.3d at 210 (quoting Restatement (Second) of Torts § 652B cmt. b.).23
statute. See Benton, 130 S.W.2d at 107 (cause of action for libel abated by the death of victim and surviving wife cannot maintain action); Akers v. Akers, 84 Tenn. 7, 11 (1885) (holding that “original alleged tort” of libel “unquestionably died with the defendant” under character exception to survival statute); Bolin v. Stewart, 66 Tenn. 298, 299 (1874) (commenting that “[l]ibel and slander unquestionably fall within the definition of the excepted cases in the statutes” because those claims “are brought directly and solely to recover damages for defamation of character“). See also Warren & Brandeis, The Right to Privacy, 4 Harv. L. Rev. at 197 (contrasting defamation with privacy rights such as intrusion upon seclusion).24
In short, for intrusion upon seclusion, the plaintiff need not prove that the defendant‘s violation of her right affected, that is, “produce[d] an effect or change upon,” the plaintiff‘s character. Affect, 1 Noah Webster, An American Dictionary of the English Language, supra. Nor can the plaintiff‘s character provide the defendant with a defense to the claim.
Of note, the analysis of whether an action is “for wrongs affecting the character of the plaintiff” under the exception in
reflect on his character.25 Many do not.26 The character exception applies only where the action is for the type of wrong that ”necessarily involves and affects the character of the plaintiff.” Hullett, 49 S.W. at 758 (emphasis added).27
In sum, for an intrusion upon seclusion action, the plaintiff‘s legal right does not involve her character; evidence of the plaintiff‘s alleged low moral character provides no defense to the claim; and the plaintiff need not prove that the defendant‘s violation of her right produced an injurious effect on the plaintiff‘s character. Therefore, an action for intrusion upon seclusion is not one “for wrongs affecting the character of the plaintiff” and the exception to the survival statute does not apply to the Plaintiff‘s claim against Life Care.
Harris v. Horton
Life Care also argues that the opinion of our Court of Appeals in Harris v. Horton indicates that Plaintiff‘s intrusion upon seclusion claim does not survive Ms. Jones‘s death. 341 S.W.3d 264, 271 (Tenn. Ct. App. 2009), overruled on other grounds by Rogers v. Louisville Land Co., 367 S.W.3d 196, 205 n.6 (Tenn. 2012). In that case, a man died in a motor vehicle accident. Id. at 266. First responders took photographs of the accident scene, including the deceased man‘s lifeless body. Id. A paramedic later showed the photographs to students in a driver‘s education class, to show the dangers of reckless driving. Id.
In Harris, the deceased man‘s family learned that the photographs had been shown and filed a lawsuit asserting claims for invasion of privacy, based on intrusion upon seclusion and public disclosure of private facts. Id. at 267. The trial court dismissed the claims for invasion of privacy on the basis that the right of privacy is a personal right that lapses upon death and cannot be asserted by family members. Id. at 268. On appeal, the Court of Appeals commented that “[t]he trial court correctly noted that the right to privacy is a personal right in Tennessee” that, under West, cannot be asserted by an individual‘s family after his death. Id. at 271 (citing West, 53 S.W.3d at 648 (citing Restatement (Second) of Torts § 652I cmt. a-c.)).
Based on that passage, Life Care argues that the Court of Appeals in Harris “necessarily acknowledges that the holding in West and the Restatement (Second) of Torts 652I also apply to intrusion upon seclusion claims.” Going further, Life Care asserts that ”Harris suggests that a claim for invasion of privacy based on intrusion upon seclusion also cannot be revived after the death of the injured party.”
Life Care ignores the context in Harris. The Harris court explained that the decedent‘s family sought to “assert their own right of privacy with respect to the photographs of [the deceased man‘s] body,” so the court did not need to consider whether family could continue to assert the decedent‘s claim after his death. Id. (emphasis added). Unlike the instant case, the plaintiffs in Harris filed their lawsuit—asserting their own privacy interests—after their family member‘s death. Consequently, there was no need in Harris to address the survival statute, and the language Life
In sum, then, under the plain language in
CONCLUSION
For the reasons set forth above, we affirm the ruling of the Court of Appeals that the Plaintiff‘s claim for intrusion upon seclusion did not abate upon the death of Ms. Jones pursuant to
s/Holly Kirby, Chief Justice
HOLLY KIRBY, CHIEF JUSTICE
Notes
Jones, 2023 WL 3476523, at *10 n.5. The parties then filed supplemental briefs on the issue. Id. at *10.This matter was argued before the Court on January 5, 2023. Following argument and during its review of the issues raised by the parties, the Court came upon an issue that was not raised by either party. The issue is “whether an action for the invasion of privacy can be maintained after the death of the individual whose privacy was invaded.” See West v. Media Gen. Convergence, Inc., 53 S.W.3d 640, 648 (Tenn. 2001) (citing Section 652I of the Restatement (Second) of Torts cmt. a–c (1977)) (“[W]hich recognizes that the right to privacy is a personal right. As such, the right . . . may not be assigned to another, nor may it be asserted by a member of the individual‘s family, even if brought after the death of the individual.“).
Because the parties have not briefed this issue, and acting pursuant to the reasoning in State v. Bristol, 654 S.W.3d 917, 928 (Tenn. 2022), the parties are afforded the opportunity to be heard on this issue.
such damages for the privacy harm of deprivation of seclusion as distinct from damages for emotional distress and personal humiliation. See id. at § 652H cmts. a & b. Jones, 2023 WL 3476523, at *9.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.” Restatement (Second) of Torts § 652H cmt. a. (1977). The Restatement treats
This Court has stated that “[o]ur scope of review on appeal is limited to the issues raised in [an appellant‘s] Tennessee Supreme Court Rule 11 application for permission to appeal,” and that “[a] party who fails to adequately raise an issue in a Rule 11 application waives the issue.” TWB Architects, Inc. v. Braxton, LLC, 578 S.W.3d 879, 887 (Tenn. 2019) (citing Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012)).
The Court requests that the parties be prepared to address at oral argument whether Life Care has waived issues stated in its brief that were not raised in its application for permission to appeal.
Act of February 17, 1836, ch. 77, § 1, 1835-1836 Tenn. Pub. Acts 184. As can be seen, the exception to the survival statute in its original form included wrongs affecting the “person” of the plaintiff; this was modified in 1858 to delete reference to the “person” of the plaintiff, leaving only wrongs affecting the “character of the plaintiff.” Furstenheim, 35 F. at 697 (describing the evolution of law on abatement and survival of causes of action in Tennessee).Be it enacted by the General Assembly of the State of Tennessee, That hereafter when any person may depart this life, by or against whom an action of detinue, or trover, or any civil action, whether the same be founded on wrongs or contracts, except actions for wrongs affecting the person or character of the plaintiff, may have commenced, it shall be lawful to renew such suit by or against the personal representative of such decedent, subject to the same rules, regulations and restrictions, that actions founded upon contract are renewed by the existing laws.
Restatement (Second) of Torts § 652B cmt. c.The defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs. Thus there is no liability for the examination of a public record concerning the plaintiff, or of documents that the plaintiff is required to keep and make available for public inspection. Nor is there liability for observing him or even taking his photograph while he is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye. Even in a public place, however, there may be some matters about the plaintiff, such as his underwear or lack of it, that are not exhibited to the public gaze; and there may still be invasion of privacy when there is intrusion upon these matters.
Warren & Brandeis, supra, at 197.Owing to the nature of the instruments by which privacy is invaded, the injury inflicted bears a superficial resemblance to the wrongs dealt with by the law of slander and of libel, while a legal remedy for such injury seems to involve the treatment of mere wounded feelings, as a substantive cause of action. The principle on which the law of defamation rests, covers, however, a radically-different class of effects from those for which attention is now asked. It deals only with damage to reputation, with the injury done to the individual in his external relations to the community, by lowering him in the estimation of his fellows.