Indiana Common Law

  1. Invasion of Privacy – Generally

    1. Introduction

      Under Indiana law, a plaintiff can recover for unreasonable invasions of privacy. The Indiana Supreme Court has held that the term “invasion of privacy” is a label used to describe “four distinct injuries: (1) intrusion upon seclusion, (2) appropriation of [name or] likeness, (3) public disclosure of private facts, and (4) false-light publicity.”1 Whether Indiana recognizes a cause of action for public disclosure of private facts is not yet settled.

      Invasion of privacy torts are similar to defamation but reach different interests.2 Defamation reaches injury to reputation, while privacy actions involve injuries to emotions and mental suffering.3 Invasion of privacy torts are not assignable, meaning that they must be brought by the person who has suffered the injury.4 In addition, “[a] corporation, partnership or unincorporated association has no personal right of privacy.”5

      A victim would not need to prove physical injury to recover in an action for invasion of privacy under Indiana law. Damages for invasions of privacy include, but are not limited to, “compensation for the embarrassment, humiliation and mental pain [that] a person of ordinary sensibilities would have suffered under the circumstances.”6

    1. Felsher v. Univ. of Evansville, 755 N.E.2d 589, 593 (Ind. 2001). 

    2. Near East Side Cmty. Org. v. Hair, 555 N.E.2d 1324, 1335 (Ind. Ct. App. 1990). 

    3. Id 

    4. See Restatement (Second) of Torts § 652I cmt. a (1977). 

    5. See id. at § 652I cmt. c. 

    6. Keehr v. Consol. Freightways of Delaware, Inc., 825 F.2d 133, 139 (7th Cir. 1987) (citing Cont'l Optical Co. v. Reed, 86 N.E.2d 306, 309 (1949)). 

    ↑ Back to top
  2. Invasion of Privacy – Intrusion Upon Seclusion

    1. Introduction

      The tort of intrusion upon seclusion protects an individual from intrusion into his or her private space. This type of claim may be appropriate where a victim of nonconsensual publication of intimate photographs or videos is filmed or photographed inside his or her home. It is important to note that Indiana courts have narrowly construed the tort of invasion of privacy by intrusion. For example, in Cullison v. Medley, the Indiana Supreme Court held that the tort of invasion of privacy by intrusion requires intrusion into the plaintiff's private “physical solitude or seclusion.”1 The tort arguably embraces intrusion into emotional solace,2 but there have been no cases in Indiana in which a claim of intrusion was proven without physical contact or invasion of the plaintiff's physical space such as the plaintiff's home.3 The Indiana Supreme Court has held that public harassment allegations “would not constitute an actionable claim for invasion of privacy [by intrusion] because plaintiff has no legal right to be left alone on a public street or in a public place.”4

    2. Elements

      To establish a claim for invasion of privacy by intrusion a plaintiff must demonstrate that: (1) there was an intrusion upon the plaintiff's physical solitude or seclusion, such as by invading his home or other quarters; and (2) the intrusion was something which would be offensive or objectionable to a reasonable person.5

    3. Cases

      1. Cullison v. Medley, 570 N.E.2d 27 (Ind. 1991)
        • Procedural Posture: Petition for transfer and appeal of an appellate court's affirmation of a trial court’s grant of summary judgment in favor of defendants
        • Law: Invasion of privacy (intrusion upon seclusion); trespass; assault; harassment; IIED
        • Facts: Plaintiff met a 16-year-old girl in a grocery store parking lot and invited her to have a Coke with him and come to his home to talk further. Later, the 16-year-old girl and several of her family members went to plaintiff’s home, entered the home without being invited and threatened plaintiff to stay away from the girl. One of the family members was wearing a gun in a holster during the confrontation. Plaintiff also alleged that certain family members harassed plaintiff in a local restaurant and by walking past his home in a taunting manner. Plaintiff brought claims against the girl and her family for invasion of privacy, trespass, assault and intentional infliction of emotional distress. The trial court granted summary judgment in favor of the defendants, and the appellate court affirmed. Plaintiff petitioned to transfer the case to the Indiana Supreme Court and appealed the appellate court's affirmation of the trial court's grant of summary judgment in favor of defendants.
        • Outcome: The Indiana Supreme Court accepted transfer, vacated the opinion of the appellate court, affirmed the grant of summary judgment in favor of defendants on the counts alleging invasion of privacy (intrusion upon seclusion) and intentional infliction of emotional distress, and reversed the grant of summary judgment as to the counts alleging trespass and assault. With regard to the invasion of privacy (intrusion upon seclusion) claim, the court found that plaintiff could not sustain a claim for invasion of privacy because the alleged actions in the restaurant and in walking past his home did not constitute invasion of privacy “because plaintiff ha[d] no legal right to be left alone on a public street or in a public place.”6 Further, because the events that occurred inside of plaintiff’s home also constituted trespass, the court found that plaintiff could not simultaneously maintain an action for trespass and for invasion of privacy based on the same conduct.
        • Special Notes: In the absence of a claim for trespass for the same conduct on which an invasion of privacy (intrusion upon seclusion) is based, a court may find an intrusion upon a plaintiff's private residence or space sufficient to sustain a claim of invasion of privacy (intrusion upon seclusion).
      2. Ledbetter v. Ross, 725 N.E.2d 120 (Ind. Ct. App. 2000)
        • Procedural Posture: Appeal of a trial court’s grant of motions to dismiss in favor of defendants
        • Law: Invasion of privacy (intrusion on seclusion); IIED
        • Facts: Plaintiff, the wife of a patient who received therapy from a licensed social worker, brought suit against the social worker and his employer alleging invasion of privacy and other claims based on a telephone call received by plaintiff during which the person making the call identified himself as the social worker and stated that he had received confidential information from a representative of the plaintiff's health insurer concerning therapy that plaintiff had undergone with a psychologist. The person making the telephone call stated, in some detail, the information that he had received. In response to plaintiff's complaint, each of the defendants filed a motion to dismiss for failure to state a claim. The trial court granted both defendants' motions to dismiss and denied plaintiff's motion to correct errors. Plaintiff appealed the trial court's grant of the motions to dismiss in favor of defendants.
        • Outcome: The appellate court affirmed the trial court's grant of the motions to dismiss in favor of defendants, finding that (i) plaintiff provided no support for the proposition that a single phone call could be as intrusive as an actual physical intrusion; and (ii) as a matter of law, a single telephone call was not “offensive or objectionable to a reasonable person” and “cannot be the basis for invasion of privacy by intrusion.”7
      3. Branham v. Celadon Trucking Services, Inc., 744 N.E.2d 514 (Ind. Ct. App. 2001)
        • Procedural Posture: Appeal from a trial court's order granting partial summary judgment in favor of defendant
        • Law: Invasion of privacy (intrusion on seclusion); invasion of privacy (by false light) libel; IIED; negligent supervision
        • Facts: Plaintiff fell asleep in the work room of his employer during a work break. A co-worker took a photograph of plaintiff and another co-worker in a suggestive pose. The co-worker then showed the photograph to other co-workers. Plaintiff felt like a “laughing stock,” secured other employment and left the company. Plaintiff and his wife sued the company and the individuals involved in the stunt, alleging invasion of privacy and other claims. Each of the defendants then filed motions for summary judgment on all claims. The trial court granted summary judgment in favor of the defendant co-worker who took the photograph on a claim for negligent supervision and denied summary judgment on all other claims. All parties appealed.
        • Outcome: The appellate court affirmed the trial court's grant of summary judgment in favor of defendants on the invasion of privacy (intrusion upon seclusion) claim, finding that (i) there was not intrusion upon plaintiff’s private, physical space because other people were in the break room when the photograph was taken and the break room was used as an area for employees to eat their lunches; and (ii) defendants did not intrude on plaintiff’s emotional privacy because he was asleep when the picture was taken and could not have suffered any emotional harm at that time.
      4. Creel v. I.C.E. & Associates, Inc., 771 N.E.2d 1276 (Ind. Ct. App. 2002)
        • Procedural Posture: Appeal of a trial court's grant of summary judgment in favor of defendant
        • Law: Invasion of privacy (intrusion upon seclusion); IIED
        • Facts: Plaintiffs, a pastor and his wife, brought claims for invasion of privacy and intentional infliction of emotional distress against defendant, a private investigative agency that employed a private investigator who secretly videotaped the plaintiffs at a church service to determine whether the wife's activities were consistent with her medical diagnosis and disability determination in connection with her long-term disability claim. Defendant filed a motion for summary judgment based on no genuine issue of material fact concerning both claims. The trial court granted summary judgment in favor of defendant. Plaintiffs appealed.
        • Outcome: The appellate court affirmed the trial court's grant of summary judgment in favor of defendant for both claims. The court noted that it was unsettled as to whether intrusion on “emotional privacy” constituted an invasion of privacy. However, the court found that, in this situation, it was “undisputed that the [plaintiffs] were unaware of the videotaping as it occurred, and, therefore, they could not have suffered any emotional disturbance from being filmed.”8 The court also found that there was no intrusion on physical privacy or seclusion because the plaintiffs “were neither alone nor secluded when the videotaping occurred” at the church.9 It noted that “[w]hile the [plaintiffs] object to the covert videotaping, it simply captured activity that was open to the public, observed by many, and which [the private investigator] or any other of the church attendees could have testified to witnessing at trial.”10 In addition, the court found that, because all of the taping took place in areas that were open to the public and visible from the church pews, “the [plaintiffs] had no reasonable expectation of privacy in their activities.”11
      5. Curry v. Whitaker, 943 N.E.2d 354 (Ind. Ct. App. 2011)
        • Procedural Posture: Appeal of the trial court's grant of summary judgment in favor of defendants
        • Law: Invasion of privacy (intrusion upon seclusion); invasion of privacy (by false light); IIED
        • Facts: Defendants, neighbors of the husband and wife plaintiffs, suspected that one of the plaintiffs was vandalizing their property and, as a result, installed surveillance cameras aimed at the common yard between the two homes, part of the plaintiffs' front yard, the plaintiffs' driveway and the corner of the plaintiffs' garage. The surveillance cameras captured a person who defendants thought looked like one of the plaintiffs (the husband) damaging a home security sign that was located on defendants' property and showed the video footage to a law enforcement officer, who could not identify the vandal. Defendants then showed the video footage to a law enforcement officer who was also a board member of the defendants' and plaintiffs' HOA and indicated that they wanted to pursue charges against the plaintiff husband who they suspected had caused the damage. The plaintiff husband was arrested for alleged misdemeanor criminal mischief and was later acquitted of the charges following a bench trial. Plaintiffs filed a complaint against defendants for invasion of privacy by intrusion, invasion of privacy by false light and intentional infliction of emotional distress. Defendants responded with a counterclaim and later filed a motion for summary judgment on plaintiffs' complaint. The trial court granted summary judgment in favor of defendants. Plaintiffs appealed.
        • Outcome: The appellate court affirmed the trial court's grant of summary judgment in favor of defendants, finding that defendants' surveillance cameras did not intrude into plaintiffs' private physical space because they were aimed at public areas, that plaintiffs' failed to establish a genuine issue of material fact on the "publicity" element of invasion of privacy by false light and that none of the designated facts suggest that defendants' conduct was so extreme in degree as to go beyond all possible bounds of decency so as to satisfy the threshold for finding a cause for intentional infliction of emotional distress. With regard to the invasion of privacy (intrusion upon seclusion) claim, the appellate court noted that, “[a] defendant may be liable for intrusion into private affairs if he or she has engaged in conduct that resembles watching, spying, prying, besetting, or overhearing, and the intrusion has invaded an area which one normally expects will be free from exposure to the defendant.”12
    4. Practice Pointers

      The statute of limitations for invasion of privacy (intrusion upon seclusion) claims in Indiana is two years. Although there is no specific statute on point, Indiana uses the same limitations period for invasion of privacy (intrusion upon seclusion) as it does for actions for injuries to persons.13

    1. 570 N.E.2d 27, 31 (Ind. 1991). 

    2. Munsell v. Hambright, 776 N.E.2d 1272, 1283 (Ind. Ct. App. 2002). 

    3. Creel v. I.C.E. & Associates, Inc., 771 N.E.2d 1276, 1280 (Ind. Ct. App. 2002) (citations omitted). 

    4. Cullison, 570 N.E.2d at 31. 

    5. Ledbetter v. Ross, 725 N.E.2d 120, 123 (Ind. Ct. App. 2000) (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 117 at 854-855 (5th ed.1984)). 

    6. Cullison, 570 N.E.2d at 31.  

    7. Ledbetter, 725 N.E.2d at 123. 

    8. Creel, 771 N.E.2d at 1281. 

    9. Id. 

    10. Id. 

    11. Id. 

    12. Curry, 943 N.E.2d at 358. 

    13. See Ind. Code § 34-11-2-4. 

    ↑ Back to top
  3. Invasion of Privacy – Publication of Private Facts

    1. Introduction

      A public disclosure of private facts claim may be useful for a victim of nonconsensual publication of intimate photographs or videos. Although the Indiana Supreme Court has expressed uncertainty as to whether a cause of action for publication of private facts exists in Indiana,1 several appellate courts have subsequently held that it does.

    2. Elements

      To establish a claim for public disclosure of private facts, a plaintiff must demonstrate: (1) private information was publicly divulged; (2) to persons who had no legitimate interest in the information; (3) in a manner that was coercive and oppressive; and (4) such information would be highly offensive and objectionable to a reasonable person of ordinary sensibilities.2

    3. Cases

      1. Pohle v. Cheatham, 724 N.E.2d 655 (Ind. Ct. App. 2000)
        • Procedural Posture: Interlocutory appeal from the trial court’s grant of partial summary judgment in favor of plaintiff regarding the defendant's affirmative defense of waiver
        • Law: Invasion of privacy (public disclosure of private facts); IIED
        • Facts: Plaintiff and defendant, who were an estranged married couple, engaged in sexual relations at the defendant-husband's home during their estrangement. During this visit, in which the plaintiff-wife claims to have had hopes of reconciliation, plaintiff voluntarily posed for the defendant to take Polaroid photographs of her clothed, in a state of nudity and performing a sexual act. The plaintiff did not ask what the defendant intended to do with the photos or attempt to recover the photos at any time. Following the subsequent dissolution of their marriage, defendant wrote a letter to plaintiff threatening to publicize the photographs. Defendant later photocopied the photographs together with lurid captions and scattered them around several locations throughout the county, including in the plaintiff’s neighborhood and in her church. After being alerted by a neighbor who found one of the photocopies, plaintiff and the neighbor canvased the neighborhood to retrieve the pictures. Plaintiff also attempted to recover the photocopies from other locations, with help from her family and friends (approximately sixty photocopies were retrieved from various locations). As a result of publication of the photographs, plaintiff brought claims for invasion of privacy and intentional infliction of emotional distress against defendant, and defendant raised the defense of waiver in response. Plaintiff then filed a motion for partial summary judgment, arguing that, as a matter of law, waiver was not a viable affirmative defense in the case. The trial court granted plaintiff’s motion for summary judgment. Defendant appealed.
        • Outcome: The appellate court affirmed the trial court's grant of summary judgment in favor of plaintiff. The court found that, even though plaintiff voluntarily submitted to the photographs and did not attempt to retrieve them, her claim is premised on the distribution of the photographs, not defendant’s retention of them. Therefore, defendant must show that plaintiff intended to waive her right to complain about his distribution of the photographs.3 The court noted that the evidence in the record showed that, “in the heat of passion and [with] hopes of reconciliation, [plaintiff] simply consented to being privately photographed by her husband."4 The court found that, "[f]rom such limited consent, it certainly cannot legitimately be inferred that [plaintiff] intended to waive her right to complain about the public distribution of the photographs.”5
    4. Practice Pointers

      • Whether Indiana recognizes a claim for publication of private facts is unsettled. In Doe v. Methodist Hospital, a plurality of Indiana Supreme Court justices was not persuaded “to endorse the sub-tort of disclosure.”6 Two Justices ruled that Indiana law did not recognize a legal claim for publication of private facts, while three others agreed with the result in the case but not with its reasoning. Some Indiana courts have indicated that the plurality in this case did not “foreclose all future claims for public disclosure of private facts.”7
      • Assuming a claim for publication of private facts can be brought in Indiana, the disclosure of private facts must be public. “A communication to a single person or to a small group of persons is not actionable because the publicity element requires communication to the public at large or to so many persons that the matter is substantially certain to become one of public knowledge.”8
      • A few courts have adopted a looser definition of “publicity,” finding that disclosure of private facts may be actionable if disclosed to a “particular public” with a special relationship to the plaintiff.9 Indiana case law is unsettled as to whether Indiana recognizes this looser definition of "publicity."
      • A victim considering whether to bring a claim for publication of private facts should consider the totality of the circumstances surrounding the specific disclosure of private images and facts as well as what the reasonable expectations of each party could be in relation to such disclosure.
      • There is no liability when a defendant merely gives further publicity to information that is already public.10
      • The statute of limitations for an invasion of privacy (public disclosure of private facts) claim in Indiana is two years.11
    1. See, e.g., Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049, 1057 (Ind. 2001) (citing Doe v. Methodist Hosp., 690 N.E.2d 681 (Ind. 1997) as indicating disagreement as to whether to recognize claim for "public disclosure of private facts"). 

    2. Pohle v. Cheatham, 724 N.E.2d 655, 659 (Ind. Ct. App. 2000). 

    3. Id. at 659-61. 

    4. Id. at 661. 

    5. Pohle, 724 N.E.2d at 661.{/fn]

    6. Special Notes: The appellate court noted that a determination regarding whether an individual gives up his or her expectations of privacy and, in turn, waives all claims of public disclosure of private facts when voluntarily revealing one's affairs to a third party "should be made on a case-by-case basis, looking to the reasonable expectations of the parties and the circumstances surrounding the disclosure."Pohle, 724 N.E.2d at 660. 
    7. 690 N.E.2d 681, 693 (Ind. 1997). 

    8. See, e.g., Dietz v. Finlay Fine Jewelry Corp., 754 N.E.2d 958, 966 (Ind. Ct. App. 2001) (indicating that the plurality in Doe v. Methodist Hospital did not foreclose the all future claims for public disclosure of private facts and citing Ledbetter v. Ross, 725 N.E.2d 120 (Ind. Ct. App. 2000), which analyzes a claim for public disclosure of private facts). 

    9. Munsell v. Hambright, 776 N.E.2d 1272, 1282 (Ind. Ct. App. 2002). 

    10. Dietz, 754 N.E.2d at 966-67. 

    11. Methodist Hosp., 690 N.E.2d at 692. 

    12. See Ind. Code § 34-11-2-4. 

    ↑ Back to top
  4. Invasion of Privacy – False Light

    1. Introduction

      A victim of nonconsensual publication of intimate photographs or videos could try to bring a common law action for false light if the published material portrayed the victim as something he or she is not (e.g., portrayed the victim as an aspiring porn star or as an exhibitionist).

    2. Elements

      One who (1) gives publicity to a matter concerning another that (2) places the other before the public in a false light is subject to liability to the other for invasion of his or her privacy, if:

        (a) the false light in which the other was placed would be highly offensive to a reasonable person, and

        (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.1

    3. Cases

      1. Branham v. Celadon Trucking Services, Inc., 744 N.E.2d 514 (Ind. Ct. App. 2001)
        • Procedural Posture: Appeal from a trial court's order granting partial summary judgment in favor of defendant
        • Law: Invasion of privacy (by false light); invasion of privacy (intrusion on seclusion); libel; IIED; negligent supervision
        • Facts: Plaintiff fell asleep in the work room of his employer during a work break. A co-worker took a photograph of plaintiff and another co-worker in a suggestive pose. The co-worker then showed the photograph to other co-workers. Plaintiff felt like a “laughing stock,” secured other employment and left the company. Plaintiff and his wife sued the company and the individuals involved in the stunt, alleging invasion of privacy and other claims. One defendant filed a motion to dismiss based on lack of jurisdiction; however, the trial court denied this motion. Each of the defendants then filed motions for summary judgment on all claims. The trial court granted summary judgment in favor of the defendant co-worker who took the photograph on a claim for negligent supervision and denied summary judgment on all other claims. All parties appealed.
        • Outcome: The appellate court affirmed the trial court's grant of summary judgment on the invasion of privacy (intrusion upon seclusion) claim, but found that the evidence did not support an invasion of privacy (by false light) claim because the plaintiff "was, in fact, asleep with a partially clad co-worker beside him" and "the picture was accurate, not false."2
      2. Curry v. Whitaker, 943 N.E.2d 354 (Ind. Ct. App. 2011)
        • Procedural Posture: Appeal of the trial court's grant of summary judgment in favor of defendants
        • Law: Invasion of privacy (by false light); invasion of privacy (intrusion upon seclusion); IIED
        • Facts: Defendants, neighbors of the husband and wife plaintiffs, suspected that one of the plaintiffs was vandalizing their property and, as a result, installed surveillance cameras aimed at the common yard between the two homes, part of the plaintiffs' front year, the plaintiffs' driveway and the corner of the plaintiffs' garage. The surveillance cameras captured a person who defendants' thought looked like one of the plaintiffs (the husband) damaging a home security sign that was located on defendants' property and showed the video footage to a law enforcement officer, who could not identify the vandal. Defendants then showed the video footage to a law enforcement officer who was also a board member of the defendants' and plaintiffs' HOA and indicated that they wanted to pursue charges against the plaintiff husband who they suspected had caused the damage. The plaintiff husband was arrested for alleged misdemeanor criminal mischief and was later acquitted of the charges following a bench trial. Plaintiffs filed a complaint against defendants for invasion of privacy by intrusion, invasion of privacy by false light and intentional infliction of emotional distress. Defendants responded with a counterclaim and later filed a motion for summary judgment on plaintiffs' complaint. The trial court granted summary judgment in favor of defendants. Plaintiffs appealed.
        • Outcome: The appellate court affirmed the trial court's grant of summary judgment in favor of defendants, finding that defendants' surveillance cameras did not intrude into plaintiffs' private physical space because they were aimed at public areas, that plaintiffs' failed to establish a genuine issue of material fact on the "publicity" element of invasion of privacy by false light and that none of the designated facts suggest that defendants' conduct was so extreme in degree as to go beyond all possible bounds of decency so as to satisfy the threshold for finding a cause for intentional infliction of emotional distress. With regard to the invasion of privacy (by false light) claim, the appellate court noted that defendants did "not point to much designated evidence of [plaintiffs'] 'publicity' of the allegedly false statements" and that the communications in the record could not "be construed as 'communicating ... to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.'”3
    4. Practice Pointers

      • A plaintiff cannot succeed on an invasion of privacy by false light claim if the alleged communication is accurate.4
      • A matter is made "public" by communicating it to the public at large or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.5 The difference is not one of the means of communication, which may be oral, written or by any other means; rather, it is one of a communication that reaches, or is sure to reach, the public.6
      • Invasion of privacy by false light is similar to defamation, but protects different interests: whereas "defamation reaches injury to reputation, … privacy actions involve injuries to emotions and mental suffering."7
      • The statute of limitations for an invasion of privacy by false light claim in Indiana is two years.8
    1. Branham, 744 N.E.2d at 524 (citing Restatement (Second) of Torts § 652E (1977)). 

    2. Branham, 744 N.E.2d at 525. 

    3. Curry, 943 N.E.2d at 360. 

    4. Curry, 943 N.E.2d at 359 (citing Branham, 744 N.E.2d at 524). 

    5. Curry, 943 N.E.2d at 359. 

    6. Id. at 359-60. 

    7. Newman v. Jewish Cmty. Center Ass'n of Indianapolis, 875 N.E.2d 729, 743 (Ind. Ct. App. 2007) (citing Lovings v. Thomas, 805 N.E.2d 442, 447 (Ind. Ct. App. 2004)). 

    8. Ind. Code § 34-11-2-4. 

    ↑ Back to top
  5. Invasion of Privacy – Appropriation of Another's Name or Likeness

    1. Introduction

      A victim of nonconsensual publication of intimate photographs or videos could try to bring a common law invasion of privacy action for appropriation of another’s name or likeness where the publication involves commercial gain. However, Indiana codified a cause of action for appropriating another’s name or likeness when it enacted the Indiana Right of Publicity Act.1 There is little case law regarding a common law appropriation of another’s name or likeness claim, and a statutory claim may be the more appropriate avenue.

    2. Elements

      The elements of a common law invasion of privacy for appropriation of another’s name or likeness claim have not been established in Indiana. The appropriate avenue of redress is likely a statutory claim under Indiana's Right of Publicity Act.

    3. Cases

      Research is ongoing. A search of Indiana law on these issues did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      Because of the lack of precedent in Indiana recognizing a common law invasion of privacy for appropriation of another’s name or likeness claim, a victim of nonconsensual publication of private images should consider bringing any appropriation claim under Indiana's Right of Publicity Act.

    1. Ind. Code § 32-36-1-7. 

    ↑ Back to top
  6. Defamation

    1. Introduction

      The law of defamation was created to protect individuals from attacks upon individual reputation.1 If an intimate photograph or video is published online, it may be accompanied by defamatory statements about the victim (e.g., untrue statements that the victim is in the pornography industry, has a sexually transmitted disease). It is likely that such untrue statements would be written statements (libel) as opposed to oral statements (slander). A victim of nonconsensual publication of intimate photographs or videos could try to bring a cause of action for damages to one’s reputation arising out of these untrue statements.

    2. Elements

      To prevail on a cause of action for defamation, a plaintiff must prove four elements: (1) a communication with defamatory imputation, (2) malice, (3) publication, and (4) damages.2

      A communication is defamatory per se if it imputes: (1) criminal conduct, (2) a loathsome disease, (3) misconduct in a person's trade, profession, office, or occupation, or (4) sexual misconduct.3 If the communication is defamatory per se, damages are presumed even without proof of actual harm to the plaintiff's reputation.4

      However, “a communication made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he has a duty either public or private, either legal, moral, or social, [when] made to a person having a corresponding interest or duty, is privileged.”5

    3. Cases

      1. Trail v. Boys & Girls Clubs of Nw. Indiana, 845 N.E.2d 130 (Ind. 2006)
        • Procedural Posture: Appeal of the appellate court's affirmation in part of the trial court's grant of a motion to dismiss in favor of defendant
        • Law: Defamation; breach of contract; tortious interference with a contractual relationship
        • Facts: Plaintiff, the former executive director of a not-for-profit organization, sued the organization and a number of its board members alleging defamation and several other claims in connection with an internal report and the subsequent termination of plaintiff's employment. Plaintiff alleged that the report and the organization's limited release of its contents had a negative impact on his ability to find subsequent employment. As evidence of this negative impact, plaintiff alleged that he had applied for several open positions, "but that in response he ha[d] been treated as a 'pariah' and received negative responses from prospective employers, which he states 'would have been inconceivable' before his termination."6 At the trial court, defendants moved to dismiss the claims against them for failure to state a claim. The trial court granted the defendants' motion to dismiss, and plaintiff appealed. The appellate court found that the trial court had properly dismissed plaintiff's breach of contract claim, but had wrongly dismissed plaintiff's other claims, including his claim for defamation. The Indiana Supreme Court granted transfer of the case.
        • Outcome: The Indiana Supreme Court affirmed the trial court's grant of the motion to dismiss in favor of defendants. With regard to the defamation claim, the court emphasized that "a plaintiff must prove the existence of 'a communication with defamatory imputation, malice, publication, and damages.'"7 Further, the court noted that "any statement actionable for defamation must not only be defamatory in nature, but false."8 In this case, plaintiff argued that the alleged communications were defamatory per se based on plaintiff's "allegation that the defendant's unwillingness to discuss the contents of the report 'would be taken erroneously to mean that [plaintiff] had been found to have committed grave personal improprieties with the children they serve or financial misdeeds such as embezzlement.'"9 Plaintiff's allegation, however, did not actually assert or relate to any actionable defamatory statement; rather, his "allegation merely refer[red] to the speculative effect the defendants' non-actionable silence has had on [the plaintiff's] reputation." 10 The court noted that '[i]t would be an odd use of the defamation doctrine to hold that silence constitutes actionable speech."11
        • Special Notes: The Indiana Supreme Court's analysis of the defamation claim in this case indicates that plaintiffs pursuing a defamation claim should allege an actual statement as the basis for their defamation claim in order to establish a claim sufficient to permit courts to determine its legal legitimacy.
      2. Hamilton v. Prewett, 860 N.E.2d 1234 (Ind. Ct. App. 2007)
        • Procedural Posture: Appeal from trial court's order granting summary judgement in favor of defendant
        • Law: Defamation; IIED; anti-SLAPP statute
        • Facts: Plaintiff, a small business owner, sued defendant, the operator of a website that parodied the small business owner as a manipulative individual personally and professionally, for defamation and intentional infliction of emotional distress. Defendant filed a motion to dismiss and for summary judgment, arguing that the suit should be barred by Indiana's anti-SLAPP statute because the website was made in furtherance of defendant's right to free speech pursuant to the federal and state Constitutions. Plaintiff did not respond to defendant's motion to dismiss and argued at the trial court that they were not obligated to respond because defendant had not designated evidence as required by Indiana Trial Rule 56 and that the anti-SLAPP statute was not applicable because comedy is not a public interest within the scope of the anti-SLAPP statute. The trial court granted defendant's motion for summary judgment because plaintiff failed to demonstrate the necessary elements for a cause of action for defamation against defendant as a matter of law. Plaintiff filed a motion to correct error, but the trial court denied the motion. Plaintiff appealed the trial court's grant of summary judgment and the denial of the motion to correct error.
        • Outcome: The appellate court found affirmed the trial court's grant of the motion to dismiss and for summary judgment in favor of defendant, finding that the website constituted a parody because "no reasonable person could believe its claims to be true" and that a parody cannot constitute a false statement of fact and cannot support a defamation claim.12[ With regard to the defamation claim, the court noted that "to impose liability for defamation, a false statement of fact is required" 13 and that the U.S. Supreme Court has stated that "parody 'could not reasonably be understood as describing actual facts… [.]" 14 The court, therefore, found that, “by definition, parody cannot constitute ‘false statement of fact’ that a defamation claim requires." 15 The appellate court affirmed the trial court's grant of the website operator's motion to dismiss and for summary judgment.
      3. Newman v. Jewish Cmty. Ctr. Assn. of Indianapolis, 875 N.E.2d 729 (Ind. Ct. App. 2007)
        • Procedural Posture: Appeal of the trial court's grant of summary judgment in favor of defendants
        • Law: Defamation; invasion of privacy (intrusion upon seclusion); invasion of privacy (by false light)
        • Facts: Plaintiff, a grandmother, has a contentious relationship with her daughter. Her daughter terminated plaintiff's social contact with the daughter's two children, although plaintiff continued to interact with the children while they attended a program at the Jewish Community Center Association of Indianapolis (the "JCC") where plaintiff volunteered and where the daughter worked. Following the daughter's written request that the JCC prohibit plaintiff from volunteering in JCC activities involving her children, the JCC implemented a protocol for handling situations involving plaintiff. Plaintiff brought suit against the JCC and various individuals, alleging claims for defamation and invasion of privacy by false light and intrusion. Defendants' filed a motion to dismiss all of the claims against certain defendants and the plaintiff's invasion of privacy by intrusion claim. The trial court granted defendants' motion to dismiss. Defendants then moved for summary judgment on the remaining counts, arguing that there was no evidence that any of defendants had made the false statements of fact that were required for plaintiff to succeed on the defamation and invasion of privacy by false light claims. The trial court granted summary judgment in favor of defendants and denied plaintiff's subsequent motion to correct error. Plaintiff appealed the trial court's grant of the motion to dismiss and the motion for summary judgment in favor of defendants.
        • Outcome: The appellate court affirmed the trial court's grant of both motions in favor of the defendants. With regard to the defamation claim and defendants' motion to dismiss, the appellate court noted that a plaintiff must identify both the alleged defamatory statements and the specific individuals who made such statements in the plaintiff's compliant. 16 Because plaintiff in this case did not attribute any alleged defamatory statements to the named defendants, the court concluded that the trial court properly dismissed defendants from the action.
    4. Practice Pointers

      • True statements never give rise to liability for defamation.
      • Whether a communication is defamatory “depends, among other factors, upon the temper of the times [and] the current of contemporary public opinion, with the result that words, harmless in one age, in one community, may be highly damaging to reputation at another time or in a different place.”17 Whether a communication is defamatory is generally a question of law for the court, but the determination becomes a question of fact for the jury if the communication is reasonably susceptible to either a defamatory or a non-defamatory interpretation.18 In determining whether a defamatory meaning is possible, a court will test the effect that the statement is fairly calculated to produce and the impression it would naturally engender in the mind of the average person.19
      • The statute of limitations for a defamation claim in Indiana is two years.20 Indiana distinguishes between written untrue statements (libel) and oral untrue statements (slander). For written untrue statements (libel), the clock starts to run on the statute of limitations when the victim determines the nature of damages caused by the defamatory statement.
    1. Journal–Gazette Co., Inc. v. Bandido's, Inc., 712 N.E.2d 446, 451 (Ind.1999). 

    2. Lovings v. Thomas, 805 N.E.2d 442, 447 (Ind. Ct. App. 2004). 

    3. Id. 

    4. Id. (citing Poyser v. Peerless, 775 N.E.2d 1101, 1106 (Ind. Ct. App. 2002)). 

    5. Elliott v. Roach, 409 N.E.2d 661, 672 (Ind. Ct. App. 1980). 

    6. Trail v. Boys and Girls Clubs of Nw. Indiana, 845 N.E.2d 130, 134 (Ind. 2006). 

    7. Id. at 136 (quoting Davidson v. Perron, 716 N.E.2d 29, 37 (Ind. Ct. App. 1999)). 

    8. Id. at 136 (citing Doe v. Methodist Hosp., 690 N.E.2d 681, 687 (Ind. 1997)). 

    9. Id. at 137. 

    10. Id. 

    11. Id. 

    12. Prewett, 860 N.E.2d at 1246. 

    13. Id. at 1243 (citing Journal–Gazette Co., Inc. v. Bandido's, Inc., 712 N.E.2d 446, 457 (Ind.1999)). 

    14. Id. at 1245 (citing Hustler v. Falwell, 485 U.S. 46, 57 (1988)). 

    15. Id. at 1245. 

    16. Jewish Cmty. Ctr. Ass'n of Indianapolis, at 742. 

    17. Journal-Gazette Co., Inc., 712 N.E.2d at 452 n.6.  

    18. Gatto v. St. Richard Sch., Inc., 774 N.E.2d 914, 923-24 (Ind. Ct. App. 2002). 

    19. Journal-Gazette Co., Inc., 712 N.E.2d at 452. 

    20. Ind. Code § 34-11-2-4. 

    ↑ Back to top
  7. Trespass to Chattel

    1. Introduction

      A victim of nonconsensual publication of intimate photographs or videos could try to bring a claim for trespass to chattel to recover money damages or equitable relief if, e.g., a defendant obtains the victim's private images or photos by accessing the victim’s personal property (such as a cell phone or a computer) without his or her consent.

    2. Elements

      To establish a claim for trespass to chattel, a plaintiff must show that (1) the defendant dispossessed the plaintiff of his or her chattel; (2) the defendant impairs the plaintiff's chattel in condition, quality or value by defendant; (3) the defendant deprived the plaintiff of the use of his or her chattel for a substantial time; or (4) the defendant harmed some other thing in which the plaintiff had a legally-protected interest.1

    3. Cases

      Research is ongoing. A search of Indiana law on these issues did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      The statute of limitations for a trespass to chattel claim in Indiana is two years.2

    1. Coleman v. Vukovich, 825 N.E.2d 397, 407 (Ind. Ct. App. 2005) (citing Terrell v. Rowsey, 647 N.E.2d 662, 666 (Ind. Ct. App. 1995)). 

    2. Ind. Code § 34-11-2-4. 

    ↑ Back to top
  8. Conversion

    1. Introduction

      A victim of nonconsensual publication of intimate photographs or videos could try to bring a claim for conversion to recover money damages or equitable relief if, e.g., a defendant appropriates the victim's private photos or images (or the media on which such photos or images are stored) or publishes them for the defendant's own benefit.

    2. Elements

      Tortious conversion is (1) the appropriation of the personal property of another to the party's own use and benefit, (2) the destruction of such property or (3) the exercise of dominion over such property, in exclusion and in defiance of the rights of the owner or lawful possessor or withholding it from his or her possession.1

      To prove conversion, a plaintiff must show that the defendant knowingly or intentionally exerted unauthorized control over the plaintiff's property.2

    3. Cases

      Research is ongoing. A search of Indiana law on these issues did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      • Good faith is not a defense to the tort of conversion.3
      • The statute of limitations for a conversion claim in Indiana is two years.4
    1. Computers Unlimited, Inc. v. Midwest Data Sys., Inc., 657 N.E.2d 165, 171 (Ind. Ct. App. 1995) (citations omitted). 

    2. Coleman, 825 N.E.2d at 407. 

    3. Computers Unlimited, Inc., 657 N.E.2d at 171 (citing Ind. & Mich. Elec. Co. v. Terre Haute Indus., Inc., 507 N.E.2d 588, 610 (Ind. Ct. App. 1987)). 

    4. Ind. Code § 34-11-2-4. 

    ↑ Back to top
  9. Breach of Contract/Promissory Estoppel

    1. Introduction

      A victim of nonconsensual publication of intimate photographs or videos could try to bring a claim for breach of contract if the parties have a contract involving consent to use an image of the victim (e.g., for advertising purposes or otherwise). However, because there is likely to be a signed release in place that would bar the victim’s claims, a victim may not be successful in bringing such a claim.

      A victim could try to bring a claim for promissory estoppel when there is an agreement between the parties but no written contract.

    2. Elements

      A claim for breach of contract requires (1) the existence of a contract; (2) the defendant's breach of the contract; and (3) damages.1

      Promissory estoppel requires (1) a promise by the promisor; (2) made with the expectation that the promissee will rely thereon; (3) which induces reasonable reliance by the promissee; (4) of a definite and substantial nature; and (5) injustice can be avoided only by enforcement of the promise.2

    3. Cases

      Research is ongoing. A search of Indiana law on these issues did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      • The statute of limitations for a breach of contract claim depends on the nature of the contract.
      • A claim of promissory estoppel will permit recovery only when there is no existing written contract. Indiana courts have observed that "in order to establish an estoppel to remove the case from the operation of the Statute of Frauds, the party must show ... that the other party's refusal to carry out the terms of the agreement has resulted not merely in a denial of the rights which the agreement was intended to confer, but the infliction of an unjust and unconscionable injury and loss."3
    1. Peterson v. Culver Educ. Found., 402 N.E.2d 448, 461 (Ind. Ct. App. 1980) (citing 6 I.L.E. Contracts §§ 257 and 237 (1958)). 

    2. First Nat'l Bank of Logansport v. Logan Mfg. Co., Inc., 577 N.E.2d 949, 954 (Ind. 1991) (citation omitted). 

    3. Brown v. Branch, 758 N.E.2d 48, 52 (Ind. 2001) (internal quotations and citations omitted). 

    ↑ Back to top
  10. Tortious Interference with Contracts

    1. Introduction

      A victim of nonconsensual publication of intimate photographs or videos could bring a claim for tortious interference with contracts in a situation where, e.g., the defendant published intimate images of the victim in part to cause the victim to lose his or her job.

    2. Elements

      In order to recover for tortious interference with a contractual relationship, a plaintiff must establish: (1) that a valid and enforceable contract exists; (2) the defendant's knowledge of the existence of the contract; (3) defendant's intentional inducement of breach of the contract; (4) the absence of justification; and (5) damages resulting from defendant's wrongful inducement of the breach.1

    3. Cases

      Research is ongoing. A search of Indiana law on these issues did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      The Indiana Supreme Court has adopted the multi-factor test in the Restatement (Second) of Torts for determining whether a defendant's conduct in intentionally interfering with a contract is justified or not.2 To determine whether a defendant’s conduct is justified, an Indiana court must consider:

        (a) the nature of the defendant's conduct;

        (b) the defendant's motive;

        (c) the interests of the plaintiff with which the defendant's conduct interferes;

        (d) the interests sought to be advanced by the defendant;

        (e) the social interests in protecting the freedom of action of the defendant and the contractual interests of the plaintiff;

        (f) the proximity or remoteness of the defendant's conduct to the interference; and

        (g) the relations between the parties.3

    1. Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228, 1235 (Ind.1994). 

    2. Id. 

    3. Winkler, 638 N.E.2d at 1235 (citing Restatement (Second) of Torts § 767 (1977)). 

    ↑ Back to top
  11. Intentional Infliction of Emotional Distress ("IIED")

    1. Introduction

      A victim of nonconsensual publication of intimate photographs or videos could try to bring a claim under the common law tort of intentional infliction of emotional distress (“IIED”) in situations where the publication of such materials caused the victim to suffer severe emotional distress.

    2. Elements

      To bring a claim for IIED, a plaintiff must show that the defendant (1) engaged in extreme and outrageous conduct (2) which intentionally or recklessly (3) caused (4) severe emotional distress to the plaintiff.1 The intent to harm emotionally constitutes the basis of this tort.2

      Note that the requirements to prove this tort are “rigorous”3 and that “intentional infliction of emotional distress is found where there is conduct exceeding all bounds usually tolerated by a decent society and causing mental distress of a very serious kind.”4

    3. Cases

      1. Bradley v. Hall, 720 N.E.2d 747 (Ind. Ct. App. 1999)
        • Procedural Posture: Appeal from trial court’s grant of summary judgment in favor of defendants.
        • Law: IIED; intentional interference with a contractual relationship
        • Facts: Plaintiff was employed by the Farm Bureau from 1966 until her termination in 1996. For approximately 20 years, her immediate supervisor was defendant. During that time, plaintiff claims that defendant harassed her, shouted at her and criticized her in front of other employees. In 1992, Bradley complained about defendant to a supervisor. Defendant subsequently blamed Bradley for a poor performance review, and the relationship between the two women deteriorated. On several occasions defendant inquired about plaintiff's menopause and once she asked if plaintiff's husband was sexually impotent due to his diabetes. Defendant also told plaintiff that her supervisory position might be eliminated, and she encouraged plaintiff to apply for other positions within the company. In July of 1995, plaintiff took a medical leave. She received a medical release in January of 1996 and, at that time, notified Farm Bureau that she wanted to return to work. Although Farm Bureau advised her it would consider her for appropriate openings, plaintiff remained on leave until July of 1996, when her employment was terminated pursuant to company policy. In October of 1996, plaintiff filed suit against defendant for invasion of privacy, intentional interference with her “business relationship” and intentional infliction of emotional distress. Plaintiff claimed that, as a result of defendant's misconduct, plaintiff suffered severe emotional distress resulting in physical illness, extended care by mental health professionals, and the loss of her employment at Farm Bureau. Defendant moved for summary judgment on all counts. The trial court granted summary judgment in favor of defendant, finding that, among other things, there was no evidence that defendant intended to harm plaintiff emotionally or that she intruded upon plaintiff's privacy. Plaintiff appealed.
        • Outcome: The appellate court reversed the trial court's grant of summary judgment in favor of defendant, finding that there was a genuine issue of material fact as to whether defendant engaged in extreme and outrageous conduct by allegedly shouting plaintiff, criticizing her work in front of other employees, inquiring about her menopause and whether her husband was sexually impotent from diabetes, and misrepresenting the company's intentions regarding the security of her position. The court noted that, “[r]easonable persons may differ on the questions of whether [defendant's] conduct was extreme and outrageous and, if so, whether that conduct caused [plaintiff] to suffer severe emotional distress.”5
        • Special Notes: The determination of whether certain conduct constitutes conduct considered to be extreme and outrageous depends on the specific facts and circumstances of the case. If reasonable persons may differ on whether certain conduct constituted extreme and outrageous conduct, summary judgment in favor of a defendant is not appropriate.
      2. Doe v. Crown Point School Corp., No. 2:12-cv-00264-PPS (N.D. Ind. Aug. 26, 2015)
        • Procedural Posture: A trial court's review of motions for summary judgment filed by plaintiff and by defendants
        • Law: IIED; battery; assault; false imprisonment; "child seduction" under Ind. Code § 35-42-4-7 (among other constitutional claims)
        • Facts: Plaintiff attended Crown Point High School through most of her junior year (the 2011-2012 school year), during which time she was a minor. Defendant (42 years old at the time) was a science teacher at the School, and plaintiff was one of his students. During the first half of the school year, defendant began acting in a way that plaintiff and other students perceived as "seductive." Defendant and plaintiff began e-mailing each other, at first about school matters, but later about personal matters including plaintiff's cheating ex-boyfriend. In these e-mails defendant was "flirty" — for instance, defendant told plaintiff she was beautiful — but none of the e-mails were explicit or sexual. The relationship began to change once the two exchanged phone numbers and began texting. One evening defendant texted plaintiff naked pictures of himself, and plaintiff sent defendant two pictures of her partially clothed. They also exchanged non-picture text messages of a sexual nature. One day during study hall, when they were alone in defendant's classroom, defendant took plaintiff's hand and kissed her on the mouth. That same evening after the kiss, defendant texted plaintiff and told her he wanted her to come over to his house. She did not go. These events were a fairly closely kept secret. However, plaintiff told a few school friends, and eventually school administrators were notified. The school's response was swift and included removing plaintiff from class and calling her parents; obtaining access to defendant's school e-mail account; removing defendant from class; and calling the police and Child Protective Services. Plaintiff changed schools for the remainder of the school year. Plaintiff filed suit against the school district and defendant, alleging nine counts that include constitutional claims as well as state law claims against defendant teacher for IIED, battery, assault, false imprisonment and "child seduction" under Ind. Code § 35-42-4-7. All of the parties filed summary judgment motions.
        • Outcome: With regard to the IIED claim, the district court denied the motions for summary judgment, noting that "there is a is a chance that a reasonable jury could find [IIED] proved based on these facts: [defendant] was a teacher, he arranged to have private time during which [plaintiff] was required by her school schedule to be in his classroom, he sent her pictures of himself showing full frontal nudity, he knew that she was vulnerable based on their e-mail correspondence about her personal issues, he knew something about her family situation and her parents' divorce, it is apparent that there would be social and emotional ramifications for a student in [plaintiff's] position, [defendant] tried to entice her to come to his house to engage in statutory rape, and he forcibly initiated a kiss with her in his classroom during a period she was required to be there." The court denied the motions for summary judgment for the battery and assault claims and for the "child seduction" claim under Ind. Code § 35-42-4-7.6
      3. Branham v. Celadon Trucking Services, Inc., 744 N.E.2d 514 (Ind. Ct. App. 2001)
        • Procedural Posture: Appeal from a trial court's order granting partial summary judgment in favor of defendant
        • Law: IIED; invasion of privacy (intrusion on seclusion); invasion of privacy (by false light) libel; negligent supervision
        • Facts: Plaintiff fell asleep in the work room of his employer during a work break. A co-worker took a photograph of plaintiff and another co-worker in a suggestive pose. The co-worker then showed the photograph to other co-workers. Plaintiff felt like a “laughing stock,” secured other employment and left the company. Plaintiff and his wife sued the company and the individuals involved in the stunt, alleging invasion of privacy and other claims. One defendant filed a motion to dismiss based on lack of jurisdiction; however, the trial court denied this motion. Each of the defendants then filed motions for summary judgment on all claims. The trial court granted summary judgment in favor of the defendant co-worker who took the photograph on a claim for negligent supervision and denied summary judgment on all other claims. All parties appealed.
        • Outcome: The appellate court affirmed the trial court's grant of summary judgment in favor of the defendants with respect to the IIED claim, finding that there was no evidence that any of the defendants intended to harm the plaintiff and that the defendants thought the photograph was a joke. The court noted that the plaintiff testified that he had no reason to contradict the testimony of the defendants that they did not intend to harm him and that one of the defendants apologized to him and said that it was meant as a joke and that such defendant seemed to be sincere.
      4. Creel v. I.C.E. & Associates, Inc., 771 N.E.2d 1276 (Ind. Ct. App. 2002)
        • Procedural Posture: Appeal of the trial court's grant of summary judgment in favor of defendant
        • Law: IIED; invasion of privacy (intrusion upon seclusion)
        • Facts: Plaintiffs, a pastor and his wife, brought claims for invasion of privacy and intentional infliction of emotional distress against a private investigative agency that employed a private investigator who secretly videotaped the plaintiffs at a church service to determine whether the wife's activities were consistent with her medical diagnosis and disability determination in connection with her long-term disability claim. The defendant filed a motion for summary judgment based on no genuine issue of material fact concerning both claims. The trial court granted summary judgment in favor of the defendant. Plaintiffs appealed.
        • Outcome: The appellate court affirmed the trial court's grant of summary judgment with regard to both claims. With regard to the IIED claim, the court found that, while the behavior of investigator "may be considered distasteful, ... it did not rise to the level of outrage necessary to support a claim for [IIED]."7
    4. Practice Pointers

      • A plaintiff bringing an IIED claim must demonstrate intent to harm as an element.
      • Indiana follows the Restatement (Second) of Torts with respect to the definition of outrageous conduct:

          “The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ”8

      • What constitutes extreme and outrageous conduct depends, in part, upon prevailing cultural norms and values.9
      • The statute of limitations for an IIED claim in Indiana is two years.10
    1. Curry, 943 N.E.2d at 361. 

    2. Ledbetter, 725 N.E.2d at 123-24. 

    3. Curry, 943 N.E.2d at 361. 

    4. Ledbetter, 725 N.E.2d at 123-24. 

    5. Bradley v. Hall, 720 N.E.2d 747, 753 (Ind. Ct. App. 1999). 

    6. The court granted defendant's motion for summary judgment on the false imprisonment claim because there was no evidence in the record that defendant falsely imprisoned plaintiff, and plaintiff failed to respond to defendant's motion for summary judgment on this claim. 

    7. Creel, 771 N.E.2d at 1283. 

    8. Bradley, 720 N.E.2d at 752-53 (citing Restatement (Second) of Torts § 46 cmt. d (1977)). 

    9. Bradley, 720 N.E.2d at 753. 

    10. See Ind. Code § 34-11-2-4. 

    ↑ Back to top
  12. Negligent Infliction of Emotional Distress (“NIED”)

    1. Introduction

      A victim of nonconsensual publication of intimate photographs or videos could try to bring a claim under the common law tort of negligent infliction of emotional distress ("NIED") in situations where a defendant's negligent actions caused the victim to suffer severe emotional distress.

    2. Elements

      Under Indiana law, actions seeking damages for emotional distress resulting from the negligence of another are permitted in two situations:

        (1) where the plaintiff has witnessed or come to the scene soon thereafter the death or severe injury of certain classes of relatives (i.e., the bystander rule)1 or

        (2) where the plaintiff has suffered a direct impact (i.e., the modified impact rule).2

      Under the bystander rule, the death or severe injury must have been proximately caused by the defendant's breach of some cognizable legal duty owed by the defendant to the relative at issue.3

      Under the modified impact rule, either (a) the direct impact must have been proximately caused by the defendant's breach of a legal duty to the plaintiff; or (b) the defendant owes a legal duty to a third-party such that the direct impact (to the plaintiff) must have been proximately caused by the defendant's breach of a legal duty to the third-party.4

      Under any of these scenarios, "the defendant's negligence in breaching a legal duty is a required predicate."5

    3. Cases

      1. Roe v. N. Adams Cmty. Sch. Corp., 647 N.E.2d 655 (Ind. Ct. App. 1995)
        • Procedural Posture: Appeal of a trial court's grant of summary judgment in favor of the defendants
        • Law: Negligence; NIED
        • Facts: Plaintiffs, Mary Roe and Jane Doe, were high-school students who enrolled in a lifeguarding class taught by a Red Cross volunteer. The class was offered at the pool at plaintiffs' high school at night and on the weekends. During the school day and prior to the lifeguarding class, the locker rooms and the pool area were locked, and the only non-school personnel who had a key were the Parks and Recreation Department, who staffed the pool when it was being used for community purposes. The Red Cross made arrangements with the school to have a custodian unlock the pool facilities just before the class began. After the classes, the Red Cross volunteer would inspect the pool and locker rooms and a custodian would lock the pool area. Approximately one month before the classes were to begin, N.T., T.J., and several other Bellmont students concocted the idea to videotape the girls as they undressed in the locker room. During at least three of the lifeguarding classes, N.T. placed his grandparents' camcorder in one of the women's lockers and videotaped them while they changed clothes. T.J. served as a lookout while N.T. adjusted the camera. In order to disguise the camera and prevent its discovery, N.T. wrapped the camcorder in a towel and padlocked the locker shut. While the Red Cross volunteer conducted nightly inspections of the locker rooms, he never saw the camcorder. Eventually, several students informed the high school principal of the videos. When the principal confronted N.T., he explained that all copies of the tape had been destroyed. N.T. was eventually expelled from the school and the principal gave the tape to the local police. Plaintiffs filed actions against the Red Cross volunteer, the Red Cross and the high school, seeking damages for injuries as a result of the videotaping episodes. The trial court granted motions for summary judgment in favor of defendants. Plaintiffs appealed.
        • Outcome: The appellate court affirmed the trial court's grants of summary judgment in favor of the defendants, finding that there were no genuine issues of material fact. With regard to the NIED claim, the court noted that the plaintiffs neither alleged any impact by anyone at any time nor any intentional wrongful conduct on the part of the school, the Red Cross volunteer or the Red Cross.
    4. Practice Pointers

      • Indiana does not permit actions "seeking damages for emotional distress predicated upon a breach of an alleged duty not to inflict emotional injury on another."6
      • The statute of limitations for an NIED claim in Indiana is two years.7
    1. Spangler v. Bechtel, 958 N.E.2d 458, 466 (Ind. 2011) (citing Groves v. Taylor, 729 N.E.2d 569, 573 (Ind.2000)). 

    2. Id. at 466 (citing Shuamber v. Henderson, 579 N.E.2d 452, 456 (Ind. 1991)). 

    3. Id. at 466 (citations omitted). 

    4. Id. 

    5. Id. at 466. 

    6. Spangler, 958 N.E.2d at 466. 

    7. See Ind. Code § 34-11-2-4. 

    ↑ Back to top
  13. Negligence

    1. Introduction

      A victim of nonconsensual publication of intimate photographs or videos could try to bring a negligence claim where a defendant who owed a duty to the plaintiff is involved in the publication of such materials.

    2. Elements

      Under Indiana law, the tort of negligence consists of (1) a duty owed to the plaintiff by the defendant, (2) a failure of the defendant to conform his conduct to the standard of care required by the relationship, and (3) an injury to the plaintiff resulting from the defendant's failure.1

    3. Cases

      1. Roe v. N. Adams Cmty. Sch. Corp., 647 N.E.2d 655 (Ind. Ct. App. 1995)
        • Procedural Posture: Appeal of a trial court's grant of summary judgment in favor of the defendants
        • Law: Negligence; NIED
        • Facts: Plaintiffs, Mary Roe and Jane Doe, were high-school students who enrolled in a lifeguarding class taught by a Red Cross volunteer. The class was offered at the pool at plaintiffs' high school at night and on the weekends. During the school day and prior to the lifeguarding class, the locker rooms and the pool area were locked, and the only non-school personnel who had a key were the Parks and Recreation Department, who staffed the pool when it was being used for community purposes. The Red Cross made arrangements with the school to have a custodian unlock the pool facilities just before the class began. After the classes, the Red Cross volunteer would inspect the pool and locker rooms and a custodian would lock the pool area. Approximately one month before the classes were to begin, N.T., T.J., and several other Bellmont students concocted the idea to videotape the girls as they undressed in the locker room. During at least three of the lifeguarding classes, N.T. placed his grandparents' camcorder in one of the women's lockers and videotaped them while they changed clothes. T.J. served as a lookout while N.T. adjusted the camera. In order to disguise the camera and prevent its discovery, N.T. wrapped the camcorder in a towel and padlocked the locker shut. While the Red Cross volunteer conducted nightly inspections of the locker rooms, he never saw the camcorder. Eventually, several students informed the high school principal of the videos. When the principal confronted N.T., he explained that all copies of the tape had been destroyed. N.T. was eventually expelled from the school and the principal gave the tape to the local police. Plaintiffs filed actions against the Red Cross volunteer, the Red Cross and the high school, seeking damages for injuries as a result of the videotaping episodes. The trial court granted motions for summary judgment in favor of defendants. Plaintiffs appealed.
        • Outcome: The appellate court affirmed the trial court's grant of summary judgment in favor of the defendants, finding that there were no genuine issues of material fact. With regard to the negligence claim, the court noted that that "there is no support for a finding that the school assumed a duty to provide security for the Red Cross classes" and that "[t]he evidence only demonstrates that the school agreed to provide the facilities to the Red Cross for the classes, and the custodians were on duty to primarily provide cleaning and maintenance services."2 The court further noted that the plaintiffs did not demonstrate that "N.T.'s conduct was foreseeable or that the school's alleged negligence proximately caused the plaintiffs injuries"3 and that there was no evidence "supporting a type of relationship [between the plaintiffs and the Red Cross] giving rise to a duty to protect [the plaintiffs] from the videotaping incident."4
    4. Practice Pointers

      • Whether a duty exists is usually a question of law.5
      • In determining whether a duty exists, a court will look to “(1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns.”6
    1. Miller v. Griesel, 308 N.E.2d 701, 706 (Ind. 1974). 

    2. Roe v. N. Adams Cmty. Sch. Corp., 647 N.E.2d 655, 659 (Ind. Ct. App. 1995). 

    3. Id. at 660. 

    4. Id. 

    5. Greathouse v. Armstrong, 616 N.E.2d 364, 369 (Ind. 1993) (“The duty to exercise care for the safety of another arises as a matter of law out of some relationship existing between the parties, and it is the province of the court to determine whether such relations give rise to a duty.” (citation omitted)). 

    6. Roe, 647 N.E.2d at 659 (citing Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991)). 

    ↑ Back to top
  14. Conspiracy

    1. Introduction

      A victim of nonconsensual publication of intimate photographs or videos could try to bring a civil conspiracy claim in addition to other tort claims when an individual may have engaged in concerted action with one or more other persons in the publication or distribution of such materials.

    2. Elements

      A civil conspiracy is combination of two or more persons who engage in a concerted action to accomplish an unlawful purpose or to accomplish some lawful purpose by unlawful means.1In Indiana, there is no separate civil cause of action for conspiracy.2 However, there is a civil cause of action for damages resulting from a conspiracy.3

    3. Cases

      1. Miller v. Cent. Indiana Cmty. Found., Inc., 11 N.E.3d 944 (Ind. Ct. App. 2014)
        • Procedural Posture: Appeal of the trial court's grant of summary judgment in favor of defendants
        • Law: Civil conspiracy; defamation; invasion of privacy; IIED; tortious interference with a business relationship
        • Facts: From 1994 until his retirement in 2008, plaintiff was the president of Junior Achievement of Central Indiana ("JACI"). After his retirement, plaintiff acted as president of the Experiential Learning and Entrepreneurship Federation ("ELEF"), which is separate from but works with JACI. From approximately August of 2009 until late January or early February of 2010, plaintiff negotiated with the City of Indianapolis (the "City") regarding a potential employment opportunity in the Mayor's Office. During his employment with JACI, plaintiff was involved in a project that may have involved confusion and a misappropriation of funds from a local foundation (meant to be used on the project) between JACI and ELEF. The foundation requested an audit of the project and, although the audit revealed discrepancies, variances and irregularities, it did not reach a conclusion as to whether there was any money missing from the project. During his negotiations with the Mayor's Office, plaintiff mentioned to several individuals that he anticipated being offered a position in the Mayor's Office. The Mayor's former chief-of-staff (who had been discussing such opportunities with plaintiff) learned of these communications and put his discussions with plaintiff on hold. Plaintiff was subsequently notified that he would not be receiving an offer for a position in the Mayor's Office. Plaintiff filed suit against numerous parties, including the foundation and president of the foundation alleging, among other things, defamation, invasion of privacy, civil conspiracy, IIED and tortious interference with a business relationship. Defendants moved for summary judgment, and the trial court granted summary judgment in favor of defendants. Plaintiff appealed.
        • Outcome: The appellate court affirmed the trial court's grant of summary judgment in favor of defendants. With regard to the civil conspiracy claim, the court found that, because it concluded that an award of summary judgment was proper on each of the underlying torts alleged by plaintiff, an award of summary judgment in favor of defendants on the civil conspiracy claim was also proper.4
    4. Practice Pointers

      • A claim of civil conspiracy is not an independent cause of action and, therefore, must be considered together with the underlying tort.5
      • It is not necessary in order to establish a conspiracy that there be direct evidence of an agreement.6 Rather, a civil conspiracy may be asserted through circumstantial evidence or by averment of isolated or independent facts susceptible of an inference of concurrence of sentiment.7
    1. Miller v. Cent. Indiana Cmty. Found., Inc., 11 N.E.3d 944, 962 (Ind. Ct. App. 2014) (citing Boyle v. Anderson Fire Fighters Ass'n. Local 1262, AFL-CIO, 497 N.E.2d 1073, 1079 (Ind. Ct. App. 1986) and Sims v. Beamer, 757 N.E.2d 1021, 1026 n. 5 (Ind. Ct. App. 2001)). 

    2. Id. at 962 (Ind. Ct. App. 2014) (citing Sims v. Beamer, 757 N.E.2d 1021, 1026 (Ind. Ct. App. 2001)). 

    3. Id. 

    4. Cent. Indiana Cmty. Found., Inc., 11 N.E.3d at 963. 

    5. Id. at 962 (citing Winkler v. VG Reed & Sons, Inc., 638 N.E.2d 1228, 1234 (Ind. 1994)). 

    6. Id. at 962 (citing Tucker v. Hyatt, 51 N.E. 469 (1898)). 

    7. Id. (citing Moore v. Fletcher, 196 N.E.2d 422 (1964)). 

    ↑ Back to top
  15. Fraud

    1. Introduction

      A victim of nonconsensual publication of intimate photographs or videos could try to bring a claim for fraud if he or she was induced to provide or pose for the images by the defendant under fraudulent pretexts.

      Because Indiana does not recognize the tort of negligent misrepresentation,1 a plaintiff must make a claim for actual (intentional) fraud in order to prevail on the theories of deceit and nondisclosure.

    2. Elements

      Actual fraud exists when there is a material misrepresentation of a past or existing fact made with knowledge of or reckless disregard for the falsity of the statement to the detrimental reliance of a third party.2

    3. Cases

      1. Maynard v. 84 Lumber Co., 657 N.E.2d 406 (Ind. Ct. App. 1995)
        • Procedural Posture: Appeal from a trial court's grant of summary judgment in favor of defendant
        • Law: Fraud; malicious prosecution
        • Facts: The precursor to this suit was a complaint on account filed by defendant against plaintiff. Defendant extended a line of credit to the Maynard Corporation, which subsequently filed for bankruptcy. Defendant sought to collect the debt from plaintiff, contending that he had agreed to be personally liable for the debt. At the center of the litigation was a credit application, purportedly signed by plaintiff, that indicated that plaintiff would personally guarantee the account. Plaintiff denied signing the credit application. He contended that he refused to agree to be personally responsible, amended the application by crossing out various provisions, and did not sign the application presented by defendant. The trial court found that defendant did not meet its burden of proof and ruled in favor of plaintiff. Plaintiff then commenced the present suit against defendant, alleging malicious prosecution and fraud (including misrepresentation, fraudulent concealment and forgery). The trial court granted summary judgment in favor of defendant. Plaintiff appealed.
        • Outcome: The appellate court affirmed the trial court's grant of summary judgment in favor of defendant. With regard to the fraud claim, the court noted that a statement by an agent of defendant that he would submit plaintiff's credit application for approval indicated future conduct and, therefore, was "not a representation of a past or existing fact"3 sufficient to support a claim of fraud.
    4. Practice Pointers

      • “Actual fraud may not be based on representations regarding future conduct, or on broken promises, unfulfilled predictions, or statements of existing intent which are not executed.”4
      • “Proof of an intentional fraud will support an award of emotional distress damages. Whether in a particular case the fraud is such that it is likely to provoke an emotional disturbance is a question of fact for the jury.”5
    1. Wilson v. Palmer, 452 N.E.2d 426, 428 (Ind. Ct. App. 1983). 

    2. Short v. Haywood Printing Co., Inc., 667 N.E.2d 209, 213 (Ind. Ct. App.1996). 

    3. Maynard v. 84 Lumber Co., 657 N.E.2d 406, 409 (Ind. Ct. App. 1995) 

    4. Comfax v. North American Van Lines 587 N.E.2d 118, 125 (Ind. Ct. App. 1992). 

    5. Munsell v. Hambright, 776 N.E.2d 1272, 1281 (Ind. Ct. App. 2002) (internal citations omitted). 

    ↑ Back to top