§39.9 Unreasonable Intrusion into Private Affairs (Intrusion Upon Seclusion)

The Case: Givens v. Mullikin , 75 S.W.3d 383 (Tenn. 2002).

The Basic Facts: Plaintiff initially brought suit against Defendant after she was injured in an automobile accident. The Defendant's insurance company then hired an attorney to defend the Defendant. This attorney engaged in substantial discovery, but was eventually fired and replaced by a new law firm. The new firm then engaged in extensive discovery of its own. Plaintiff then brought a separate action on a theory of vicarious liability for the defense attorneys' alleged abuse of process, inducement to breach express and implied contracts of confidentiality, inducement to breach a confidential relationship, and invasion of privacy during discovery.

The Bottom Line:

• "The Court of Appeals, on the other hand, has recognized that an unreasonable intrusion upon the seclusion of another is actionable in this state and that the scope of this tort is parallel to that contained in section 652B of the [RESTATEMENT (SECOND) OF TORTS]. See Roberts v. Essex Microtel Assocs., II, L.P., 46 S.W.3d 205, 211 (Tenn. Ct. App. 2001). Although we reach no decision as to whether the other forms of invasion of privacy listed in the [RESTATEMENT (SECOND) OF TORTS] are actionable-the plaintiff's complaint does not raise issues related to commercial appropriation or unreasonable publicity-we agree with the Court of Appeals that a plaintiff may recover damages in Tennessee for an unreasonable intrusion into his or her private affairs." 75 S.W.3d at 411.
• "As the Roberts Court held, ''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.'' See id. at 211-12 (quoting [RESTATEMENT (SECOND) OF TORTS § 652B]). No especial publicity needs to be given to the plaintiff or to the plaintiff's affairs, and a cause of action may be stated where the plaintiff shows an intentional, and objectively offensive, interference with his or her interest in solitude or seclusion. See [RESTATEMENT (SECOND) OF TORTS § 652B cmt. a]. Further, as comment c to section 652B provides,

  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."

  Id . at 411-12.
• "The essential question to be answered with respect to this issue, then, is whether the complaint has pled facts showing that the Richardson Firm 'invaded a private seclusion that the plaintiff has thrown about [her] person or affairs.' Because a plaintiff cannot seek damages for intrusion into seclusion when he or she is required to make the allegedly private information available for public inspection, a plaintiff must allege and prove the following essential elements: (1) that the information sought by the opposing party was not properly discoverable or was otherwise subject to some form of privilege; (2) that the opposing party knew that the information was not discoverable or was subject to privilege, but nevertheless proceeded to obtain that information; (3) that the obtaining of such information would be highly offensive to a reasonable person; and (4) that injury was suffered from the invasion of privacy." Id. at 412.

Other Sources of Note: Rodgers v. McCullough , 296 F.Supp.2d 895 (W.D. Tenn 2003) (Plaintiff could proceed on claim for unreasonable intrusion upon seclusion when defendant accessed her credit report during child custody fight); Harris v. Horton, 2009 WL 4801719 (Tenn. Ct. App. Dec. 14, 2009) (display of gruesome photographs taken at accident scene did not give rise to a claim for unreasonable intrusion into private affairs and, in any event, there was an absence of the element of intent).