Lead Opinion
| Aрpellant appeals the grant of appel-lees’ motion for summary judgment and argues that the circuit court erred in finding that (1) the claim for invasion of privacy did not survive the death of the decedent; (2) the outrage claim did not survive the death of the decedent and could not be asserted as a relational wrong by the decedent’s survivors; and (3) St. Vincent could not be held vicariously liable. Because this case presents an issue of substantial public interest and needing clarification or development of the law, this court has jurisdiction pursuant to Ark. Sup.Ct. R. 1-2(b)(4) & (5). We affirm on the first point and reverse on the remaining points.
lain a complaint filed October 16, 2009, appellant, individually and as the adminis-tratrix of the Estate of Anne Pressly, alleged claims of invasion of privacy and outrage against appellees St. Vincent Infirmary Mediсal Center, Dr. Jay Holland, Candida Griffin, and Sarah Elizabeth Miller.
Appellees each filed separate answers and argued, inter alia, that the complaint failed to state facts upon which relief could be granted because any alleged claim for invasion of privacy or outrage did not survive the death of the decedent. On April 20, 2011, St. Vinсent filed a motion for summary judgment, again arguing that a claim for invasion of privacy does not survive the death of a decedent and that the claim for the tort of outrage must also fail because it is based on the alleged invasion of privacy. In response, appellant argued that, under Arkansas’s survival statute, codified at Ark.Code Ann. § 16-62-101 (Repl.2005), claims for intrusion, a category of invasion of privacy claims, do survive the death of a decedent. Appellant also denied that the claim for outrage was dependent on the claim for invasion of
After a hearing on the matter held on October 4, 2011, the court entered an order on October 14, 2011, granting summary judgmеnt in favor of appellees. The court concluded:
A. Arkansas Code Ann. § 16-62-101(a)(1) does not provide for the claim of invasion of privacy to survive the death of the decedent.
B. The claim for outrage fails because the claim is based on the same conduct as the claim for invasion of privacy; therefore, does not survive the death of the decedent and is not capable of assertion as a relational wrong by the decedent’s survivors;
C. Because the claims of invasion of privacy and the tort of [ojutrage fail, St. Vincent’s Infirmary Medical Center cannot be held vicariously liable for the conduct of its employees.
(Footnotes omitted.) Appellant filed a timely notice of appeal from this order on November 1, 2011.
Summary judgment may only be granted when there are no genuine issues of matеrial fact to be litigated, and the moving party is entitled to judgment as a matter of law. See K.C. Props. of Nw. Ark., Inc. v. Lowell Inv. Partners,
14For appellant’s first point on appeal, she argues that the circuit court erred in finding that the survival statute, Ark.Code Ann. § 16-62-101(a)(l), did not provide for the claim of invasion of privacy to survive the death of the decedent. This court has recognized that there are four actionable forms of the tort of invasion of privacy: (1) appropriation; (2) intrusion; (3) public disclosure of private facts; and (4) false light in the public eye. Jegley v. Picado,
In Dodrill v. Arkansas Democrat Co.,265 Ark. 628 ,590 S.W.2d 840 (1979), this court adopted the approach of the Restatement (Second) of Torts, which delineates four separate torts grouped under “invasion of privacy.” The privacy tort covers behavior harmful to the plaintiff even though there is no injury to his reputation. Dunlap v. McCarty,284 Ark. 5 ,678 S.W.2d 361 (1984). Intrusion has been recognized in Arkansas as one of the four actionable forms of invasion of privacy. Milam v. Bank of Cabot,327 Ark. 256 ,937 S.W.2d 653 (1997). Intrusion is the invasion by one defendant upon the plaintiffs solitude or seclusion. Id.
Although Arkansas courts have seldom adjudiсated intrusion claims, the United States Court of Appeals for the Eighth Circuit opined that, because this court adopted the Restatement approach, Arkansas courts would likely follow the Restatement’s analysis of the tort of intrusion. Fletcher v. PriceChopper Foods of Trumann, Inc., 220 F.3d 871 (8th Cir.2000). The Restatement defines liability for intrusion upon seclusion as follows:
One who intentionally intrudes, physically or otherwise, upon the solicitude or seclusion of anоther 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.
Id. at 875 (quoting Restatement (Second) of Torts § 652B (1977)). According to the Eighth Circuit, the tort consists of three parts: (1) an intrusion; (2) that is highly offensive; (8) into some matter in which a person has a legitimate expectation of liiprivacy. Id. A legitimate expectation of рrivacy is the “touchstone” of the tort of intrusion. Id. at 877
In the instant case, appellant acknowledges that at common law, tort claims did not survive the death of the plaintiff. However, appellant argues, the Arkansas General Assembly changed that law by statute with the enactment of § 16-62-101, which provides:
(a)(1) For wrongs done to the person or property of another, an action may be maintained against a wrongdoer, and the action may be brought by the person injured or, after his or her death, by his or her executor or administrator against the wrongdoer or, after the death of the wrongdoer, against the executor or administrator of the wrongdoer, in the same manner and with like effect in all respects as actions founded on contracts. (2) Nothing in subdivision (a)(1) of this section shall be so construed as to extend its provisions to actions of slander or libel.
Ark.Code Ann. § 16-62-101 (Repl.2005). In Ward v. Blackwood,
Appellant argues that, based on the language of the statute, the only exceptions to the survival statute are actions for slander or libel and that an action for intrusion does survive the decedent. Appellant attempts to distinguish the language in Ward by arguing that the opinion treated malicious prosecution as an injury to reputation, and appellant expands that interpretation to stаte that the “only class of tort that does not survive the death of a decedent under Arkansas law is a claim in which the touchstone is an injury to reputation.” The “touchstone” of intrusion is a legitimate expectation of privacy, appellant asserts, and such acclaim is preserved by the survival statute. Appellant acknowledges that there is a split of authority in other states as to whether a claim for intrusion survives the death of a decedent but argues that this court should follow Reid v. Pierce County,
In response, St. Vincent argues that Ward extended the exceptions in the survival statute to include other torts “which do not directly affect the person, but only the feelings or reputation.”
Thе injuries as alleged to the Mutual Industrial Insurance Company were all torts in the nature of slander, libel, malicious prosecution, fraudulent conspiracy to injure and destroy business, etc., etc. Actions growing out of wrongs of this nature would not survive, but were peculiar to the Mutual Industrial Insurance Company, and died when it went out of existence. The causes of action that survive are assignable; those that do not survive arе not assignable. 4 Cyc. 23. Now the causes of action that survive are those “for wrongs done to the person or property of another.” Section 6285, Kirby’s Digest. The statute means injuries of a physical character to actual, visible, and tangible property, and not to property rights or interests which in their nature are invisible and intangible.
Id. at 137,
St. Vincent contends that appellant is simply incorrect in her interpretation of the survival statute as saving every cause of action except slander and libel. St. Vincent notes that despite case law that has broadened the exceptiоns, the legislature has not amended the statute to make clear that only slander and libel do not survive a decedent’s death, which further supports the case law’s construction of the statute.
With regard to cases from other states, St. Vincent cites this court to Nicholas v. Nicholas,
[ejxcept for the appropriation of one’s name or likeness, an action for invasion of privacy can be maintained only by a living individual whose privacy is invaded.
Comment:
a. The right protected by the action for invasion of privacy is a personal right, peculiar to the individual whose privacy is invaded. The cause of action is not assignable, and it cannot be maintained by other persons such as members of the individual’s family, unless their own privacy is invaded along with his. The only exception to this rule involves the appropriation to the defendant’s own use of another’s name or likeness. (See § 652C, particularly Comment a).
b. 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. In a smaller number of states there is statutory authorization for an action on the Impart of surviving relatives for invasion of the privacy оf one who is already deceased, with the invasion occurring after his death. Since appropriation of name or likeness is similar to impairment of a property right and involves an aspect of unjust enrichment of the defendantsor his estate, survival rights may be held to exist following the death of either party.
Finally, St. Vincent distinguishes Reid, supra, by noting that it involved the publication of photographs after a decеdent’s death, which even the Restatement provides would survive as a tort for appropriation of one’s likeness.
Based on the foregoing, we hold that the circuit court did not err in finding that Ark.Code Ann. § 16 — 62—101(a)(1) does not provide for the claim of invasion of privacy to survive the death of the decedent. This holding is in line with this court’s adoption of the Restatement (Second) of Torts and our case law, most notably Ward. Thus, we аffirm the grant of summary judgment on this point.
For her second point on appeal, appellant contends that the circuit court erred in granting summary judgment on her claim for outrage. In its order, the court found that the claim for outrage failed because it was based on the same conduct as the claim for invasion of privacy. The court found that for this reason, the claim did not survive the death of the decedеnt, nor could it be asserted as a “relational wrong” by the decedent’s survivors. As support for this finding, the court cited to St. Vincent’s reply to appellant’s response to the motion for summary judgment, specifically page twelve of the reply, wherein St. Vincent |9argued that the cause of action for the tort of outrage was merely a disguised attempt at the invasion-of-privacy claim and should be rejected.
On appeal, appellant argues that the behavior of the individual appellees constituted the tort of outrage and denies that this cause of action is just another way to allege invasion of privacy. Instead, appellant contends that the outrage claim is for the emotional distress suffered by the survivors upon learning of the invasion into the decedent’s privacy. To support her argument, appellant cites Travelers Insurance Co. v. Smith,
With regard to the court’s finding that the outrage claim could not be asserted as a “relational wrong,” appellant asserts that this characterization of the claim appears to come from Boyd v. Thomson Newspaper Publishing Co., 6 Media L. Rptr. 1020 (W.D.Ark.1980), in which the court held that relatives of a deceased person may not recover for any invasion of their own privacy brought about by publicity concerning the decedent. In that opinion, the court characterized this as a “relational right of privacy.” Appellant denies that the outrage claim in the present case is a “relational” tort and reiterates that the claim is separate from any invasion of privacy claim made on behаlf of the decedent.
| min response, St. Vincent argues, as it did below, that because any claim of the
While Cherepski couches his amended complaint in terms of intentional infliction of emotional distress, it is clear that his complaint is in essence an action for alienation of affеction.... The real character of Cherepski’s claim is of an amatory tort. His attempt to label his claim otherwise does not remove it from its true characterization as a claim for alienation of affection, which the legislature has chosen to abolish as a cause of action.
Id. at 54-55,
We hold that the circuit court must be reversed on this point. The crux of the court’s order was that the outrage claim failed because it was based on the “same conduct” as the privacy-violation claim. However, neither St. Vincent nor the circuit court has cited to any authority for the proposition that two separate claims cannot be based on the same conduct. In addition, the outrage claim was not made on behalf of the decedent, but on appellant’s own behalf, and the court failed to make any findings regarding whether sufficient facts existed to Instate a cause of action for outrage. Thus, we reverse the court’s order on this point and remand for further proceedings.
For her final point on appeal, appellant argues that the circuit court erred in finding that because the claims of invasion of privacy and the tort of outrage both failed, St. Vincent could not be held vicariously liable for the conduct of its employees. Because we are reversing on the outrage claim, we likewise reverse on this point as it relates to the outrage claim and remand.
Affirmed in part; reversed and remanded in part.
Notes
. Catholic Hеalth Initiatives and First Initiatives Insurance Company were also named as defendants but were later dismissed with prejudice by agreement of the parties. The complaint also named John Does # 1-# 15 as defendants, but those claims have been abandoned pursuant to Ark. R.App. P. -Civ. 3(e)(vi).
. Appellee Dr. Jay Holland filed a separate response brief in which he adopted St. Vincent's arguments by reference but also added his own analysis of why the circuit court did not err in granting summary judgment. His argument mainly focuses on the intrusion claim and does not substantially differ from the argument offered by St. Vincent.
Concurrence Opinion
concurring.
I concur that the circuit court must be reversed and remanded in part and write only to clarify the circuit court’s error in regard to Cannady’s claim of outrage. The circuit court found that Cannady’s outrage claim fell because it was based on the same сonduct as the invasion of privacy and, therefore, did not survive the death of the decedent and could not be asserted as a relational wrong. The error in that finding is that while the privacy claim was clearly only Pressl/s to allege, the claim of outrage was also asserted as personal to Cannady and there is no reason that Cannady could not assert that she was outraged by the conduct of the appel-lees. The circuit court correctly found that Pressly’s claim of outrage did not survive her death; however, there was not a proper finding as to appellant’s claim.
To establish a claim for outrage, a plaintiff must demonstrate the following elements: |1⅞(1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct