*1 IV. Invited Error Doctrine
Lastly, post-conviction Correll claims the relying
court erred in on the invited error denying
doctrine in him relief. As our su-
preme court in Yarbrough, said "we need not
discuss" that contention as fundamental er- having
ror lies Correll's been convicted for
an offense which includes element not charging
included information. Yar-
brough, supra at 209.
Affirmed and remanded with instructions. BAKER, JJ.,
RILEY and concur.
ON PETITION FOR REHEARING рetition rehearing, its the State (1985), Ind., Craig
refers us to v. State
N.E.2d 566. We are not unaware of the However,
Craig Yarborough decision. (1986), Ind.,
State which we
followed in our finding decision Correll's con- containing
viction for a crime an element not charging information could not
stand, pronouncement is the more recent supreme
our court. We believe we are pronouncement
bound the latest of our
supreme court and Yarborough. follow
Rehearing is denied. BAKER, JJ.,
RILEY and concur. DOE, Appellant-Plaintiff
John HOSPITAL,
METHODIST Lizzie Camer-
on, Logan Cathy Cameron and Dun-
can, Appellees-Defendants. McCrosson, Dennis F. Stillwell McCrosson Life, Indianapolis, appellant. &
No. 30A01-9312-CV-421. Small, Mark Bradburn Swetnam & Small Indiana, Appeals Court Joseph Maguire, Indianapolis, ap- P. First District. pellees. Sept. Rehearing Denied Nov. ROBERTSON, Judge.
Plaintiff-Appellant, appeals John Doe summary judgment entered favor of De- fendant-Appelleе, Cathy Duncan. Doe rais- *2 designated eviden- if the rendered forthwith issues, constitute of which neither es genuine no that there is tiary matter shows error. reversible and that any material as to issue a judgment a as moving party is entitled FACTS 56(C). Any Ind.Trial Rule of law." matter favоrable to light most in the The facts or the of a fact the existence doubt about January, on that Doe reveal nonmovant from it drawn inference be reasonable Office, 1990, Doe, for the Post carrier a letter non-moving of the resolvеd favor must be attack to be a heart appeared suffered what Corporation v. Waltz Resin party. Allied (1991), Ind., N.E.2d 913. work- taken from his He was at work. while Meth- by to Co-Defendant place ambulance however, party lost which appeal, On being trans- [Hospital]. While Hospital odist persuade the burden trial court has hospital, Doe disclosed ported to the that the trial court's appellate tribunal positive Department that he had tested Ind. erroneous. decision was paramedics (1992), Ind., Caylor-Nickel Clinic [Acquired Revenue HIV, causes AIDS the virus which proper role 1313. Our par- Deficiency Syndrome]. Immune scrutiny the trial includes the careful on their HIV status noted Doe's amediecs non- to assure that the determination court's part a became information report. The improperly prevented party is not prevailing at the Hos- record medical Doe's confidential day in Id. having his court. from pital. 56(C) that, at provides Trial Rule Indiana Cameron, one of Logan Co-Defendant response, a or filing the motion the time of wife, co-workers, telephoned his Co- parts of designate to the court all party shall Cameron, employee of Lizzie Defendant interroga- depositions, answers pleаdings, notice, condi- inquire about Doe's Hospital, admissions, judicial tories, matters it any on which relies medical record other matters Lizzie examined Doe's and tion. opposing party A purposes of the motion. posi- Logan that Doe was HIV and advised court designate to the motion shall also relayed status Doe's HIV Logan tive. then party which that issue of fact each material Office,includ- employees at the Post to other summary judg- entry of precludes asserts Cathy Duncan. ing Cо-Defendant Id. thereto. evidence relevant ment and the to two relayed Doe's HIV status Duncan the motion shall judgment rendered on No co-workers, Becky and Ron Oakes other ground that there is on the be reversed already about had known Oakes Saunders. ma- fact unless the genuine issue of material infection, having informed relevant thereto been evidence fact and the terial designated to the however, specifically Saunders, been shall have in confidence. Doe 56(H). TR. trial court. not known. had brought lawsuit Doe I. Hospi- against Methodist invasion erroneously relied court the trial Whether Cameron, Cameron, tal, Logan and Lizzie desig- had failed to that Duncan on evidence All moved Cathy Duncan. defendants nate? with summary judgment which was denied pleading argument on Doe bases this except Duncan. respect to all defendants requested the had Duncan filed in which she summary only to the appeal This relates arguments, not the trial court to consider in favor of against Doe judgment entered evidence, co- her designated submitted Duncan. motions for support of their defendants judgment. points Doe out summary DECISION designation supplement her Duncan did ar- incorporated the when she of the record summary grant аppeal from On- defendants. guments of the other in as use the same standard judgment, we summary judg propriety of certaining the judgment proceedings, summary trial court. Newhouse as does the ment the law applied presume the trial court Shelbyville Bаnk v. Town Chesterton Farmers National correctly. Babinchak trial 1099. The Ind.App., 598 N.E.2d Ind.App., 28. Sum on a mo- its make determination appropriate and "shall be court shall mary judgment 3) summary judgment only tion for from evi- publicity given unreasonable private life; other's dentiary Id.; designated matter to the court. 4) publicity 56(C). that unreasonably places court, T.R. Neither the trial nor the the other in light a false before the court, appellate may ground its determina- public. tion upon materials which have not been *3 1334, 555 N.E.2d at (quoting 1335 Restate designated. Id. (Second) Torts, 652A(2) ment § at 376 (1977)). As will apparent become hopefully alleged Doe has never II, Duncan's dispositive fact, under Issue the that Dun communicationof placed his HIV status him can had disclosed Doе's HIV to only status Therefore, in a light. false complaint Doe's co-workers, two has not seriously been dis only can state a claim under the third strand puted. evidentiary The material supporting above, that gave Duncan pub unreasonable this fact is in "Supplemental contained Doe's licity private Hair, to Doe's life. See 555 Response to Interrogatories" Defendant's Thus, N.E.2d at 1335. prevail, to Doe must designated which Duncan had to the trial gave establish that Duncan "publicity" to court,. Doе himself relied on this fact private life. opposition summary judgment. to The issue of what "publicity" constitutes purposes of the tort of invasion of incorporated only Dunean arguments, the privacy facts) (public private disclosure of evidеntiary not the designated, matter of her impression one of first in Indiana. As we sufficiently co-defendants. Duncan designat- past, have in the we will turn to hornbook evidentiary ed material to the trial court in law for regarding instruction this tort. support of summary her mоtion for judgment (Second) Torts, The Restatement syn and we find no error. thesizing date, the adopted cases to a rule requiring proof,by plaintiff the 'publici ty' IL. publication rather than as that term is defamation-ie., used the law of publi gave "publicity" Whethеr Duncan single person. to the cation to a Publicity third arbitrarily was private defined as fact involved communication to sufficient sustain an 'public large, many at or to so action privacy? for an invasion of persons that regarded the mаtter must be recognizes Indiana the tort of invasion of substantially as certain to become one privacy as follows: (Dt public knowledge ... is not an inva Continental tation of one's ful lic has no such manner as to suffering, shame or The of one's оrdinary sensibility. intrusion into one's unwarranted legitimate Optical Company personality, affairs appropriation outrage humiliation to a concern with which private activities, or cause mental v. Reed or the publicizing or wrong- person (1949), exploi- pub- been held to be non-actionable to dissemi- nate to ... a limited number of large the or even to a ond) sion Consistent with the Restatement plaintiff's private [*] ... potentially of Torts or to to communicate "k many small publicity actionable "k persons group life to a [*] co-workers,. criteria, single person persons.! concerning t public matter it has (See- [*] ... at 643, 648, Elder, (1991) Ind.App. 306, 119 86 N.E.2d D.A. Privacy 308 § The Law 3:8 (Citations 155, omitted). at 156 Wright In 22), (quoting 188 A.L.R. trans. In denied. (1989), 469, Sparrow 503, 298 S.C. 381 S.E.2d Community Near East Organization Side upheld summary the court judgment (1990),Ind.App., 1324, Hair defendant, holding favor of the that disclo noted: sure of certain confidential matters to co two general privacy tort of invasion of has secretary workers and their did not consti four distinct strands: public tute a disclosure sufficient to sustain Id., an action for the invasion of 381 1) upon unreasonable intrusion the se- Eddy at S.E.2d v. Brown another; clusion of Okla., 74, 715 upheld P.2d the court 2) appropriation of the other's name summary defendant, judgment in favor of the likeness; or hоlding that the fact that a limited number of 686 303, 976, 148 Ill.Dec. Ill. un- plaintiff was heard that
co-workers 900, 903; McSurely also see did treatment dergoing psychiatric 88, 112, (D.C.Cir.1985),753F.2d v. McClellan an to sustain sufficient "publicity" amount denied, 106 S.Ct. 474 U.S. cert. P.2d privacy. 715 the invasion action for general 457. Communication L.Ed.2d at 78. disclosure required because is not public case, Duncan disclosed In the plaintiff has a persons with whom those (one only co-workers status just may be as devastat relationship special known). Beaumont, a matter of аlready As many. of whom had See ing as disclosure Miller, 531; N.E.2d at at 257 N.W.2d "publici- law, to establish has failed Doe action for his ty" required to sustain employer dis example, Duncan. Doe has against In Miller invasion of *4 mastectomy employee's court's deci- fact of its that the trial closed the persuaded us not Miller, N.E.2d employees. 560 to her fellow summary judgment was errone- grant to sion the em trial court dismissed 901. The at ous, find no error. and we by pub privacy for invasion of ployee's claim affirmed. Judgment II- Id. The private facts. lic of disclosure and held that Appeals reversed of nois Court RATLIFF, Judge, concurs. Senior allegation that her medical employee's the employ fellow to her condition was disclosed NAJAM, J., separate dissents with requirеment "sufficiently the satisfies ees opinion. fact." private given be publicity that Id. at 903. NAJAM, dissenting. Judge, Miller, fact Here, employee in the like the majority from the respectfully dissent I disclosed to condition was Doe's medical of that, as a mat- I not сonvinced opinion. am are a employees. Doe's coworkers fellow his law, the failed to establish Doe has ter of special has a rela with whom Doe "public" my fact. private of a requisite "publicity" of his HIV tionship to whom disclosure and required to degree publicity opinion, the embarrassing.1 particularly prove would positive status by public privacy of invasion of prove the tort Beaumont, at 257 N.W.2d See question of private facts is a disclosure Thus, Miller, 531; at 903. where 560 N.E.2d jury. thе fact for relationship exists between special a such learn of the embar and those who plaintiff majority upon a treatise and relies him, per number of rassing facts about that jurisdictions to hold from other decisions is not are disclosеd whom the facts sons to group of private fact to a small publicizing a dispositive. purposes of "publicity" not for is coworkers drawing the line should avoid Our courts by privacy public disclosure invasion of in majority in this case employed many jurisdic that It is true private facts. publicity has occurred determining whether public large, at require disclosure tions by public of invasion for the tort to state an just people, order not a few analysis In our private facts. disclosure type of invasion claim for this actionable numerically "attempt mea should not However, jurisdictions follow other privacy. Duncan disclosed persons to whom" sure (1) plaintiff is not a a that where the rule Beaumont, 257 positive status. HIV (2) special has a rеlation figure and he public Rather, pub quantum at 529. N.W.2d "public" to whom the ship with question is a required prove this tort licity disclosed, requirement publicity dispo for jury appropriate not of fact summary judgment. particular to a disclosure on a motion may be satisfied sition Id. at employees, club mem fellow public such as bers, neighbors. See members and church society, commonplace our Gossip is (1977), 257 401 Mich. Prosser's comment agree v. Brown Dean Beaumont I with ordinary gag upon Motorola, put "a law should 522, 531; Inc. Miller N.W.2d (because per dissolution were previously observed that court has 298, 298 n. 1 1. This parties AIDS, granted party's developing court at risk of positive "sensitive matter" status is a son's HIV place employ of names request initials in See аffecting person's interest (1991), Ind.App., N.E.2d v. L.M.G. R.E.G. privacy). protect opinion their Elder, E. citizens." David The Law Pri 8.3, vacy § (quoting at 158 n. 34 Dean Pros- speech
ser's at the 1967 American Law Insti proceedings).
tute I do not advocate limit liability every person
less in the chain of
gossip perpetuates who the disclosure of a plaintiff. However, fact about the Hability subsequent
the extent of disclo
sures addresses the second element of this
tort that the disclosure must be made in a oppressive coercive and manner. Kale See (1978),
tha v. Bortz Elevator Co. App. 178Ind.
654,658, 1071,1074, 383 N.E.2d overruled on grounds by
other Burks v. Rushmore
Ind., 1101, 1104; Patton v. Ja 358, 365, Ind.App.
cobs
789, 791, A jury trans. denied. should de
cide, applying contemporary norms, social person merely
whether a repeats who
private fact should be held liable for invasion
Accordingly, I would hold that Duncan's
disclosure of positive status to employee
even one other workplace
presents question of material fact as to
whether this fact about Doe was
"publicly" disclosed order to in- establish privacy. Summary judgment
vasion of
Duncan should be reversed and this cause be
remanded trial on Doe's claim for inva- privacy by public
sion of disclosure of
facts.
The LUTHERAN HOSPITAL OF FORT
WAYNE, INC., al., Appellant- et Below,
Defendant DOE, M.D., Appellee-
Jane
Plaintiff Below.
No. 02A03-9306-CV-194. Indiana, Appeals
Court of
Third District.
Sept.
Transfer Denied Dec.