Intrusion Upon Seclusion

The Tennessee Court of Appeals reversed the grant of summary judgment to a health care facility, concluding that actual damages need not be proved to establish an invasion of privacy (intrusion upon seclusion) tort

Ms. Annie Jones, a resident of Life Care Center of Tullahoma since 2017, had impaired cognitive functioning and required assistance with activities of daily living. On February 12, 2019, a certified nursing aide (“CNA”) employed by the healthcare facility was assisting Ms. Jones in the shower room when she received a video call from her incarcerated boyfriend. The CNA propped her phone on a shelf to continue the call, while continuing to assist Ms. Jones in the shower. During the call, Ms. Jones’s nude body was partially visible, one staff member called Ms. Jones by her first name, while two other CNAs removed Ms. Jones’s briefs. However, Ms. Jones was unaware of the video incident, and it is undisputed that no one ever informed her of the incident.

It was, however, noticed by the sheriff’s department and reported to the healthcare facility, which notified the resident’s daughter.

Holding

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 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. For the foregoing reasons, we have determined that the gravamen of the complaint is a claim for intrusion upon Ms. Jones’s seclusion, which does not require a showing of actual damages as an essential element.

The passing of Ms. Jones

Here, Plaintiff’s claims and Defendant’s actions are not of a slanderous or defamatory nature that affect the character of Ms. Jones. Accordingly, Plaintiff’s claims survive the death of Ms. Jones pursuant to Tennessee Code Annotated § 20-5-102.

(Mike Frisch)