Kentucky Common Law

  1. Invasion of Privacy (General)

    1. Introduction

      Kentucky first adopted the right to privacy in 1927, defining it as “the right of a person to be free from unwarranted publicity, or the right to live without unwarranted interference by the public about matters with which the public is not necessarily concerned.”1 However, the right is not absolute, and the court based it on the premise that the applicable standard is that of a “reasonable man” and “relative to the customs of the time and place.”2 In 1982, the Kentucky Supreme Court adopted the principles for invasion of privacy as enunciated in the Restatement (Second) of Torts § 652A.3 Thus, Kentucky observes all four categories of invasion of privacy: (1) unreasonable intrusion upon seclusion of another; (2) appropriation of another’s name or likeness; (3) unreasonable publicity given to another’s private life; or (4) false light invasion of privacy.4 Notably, the Kentucky Supreme Court has stated in dicta that it is more protective of individual privacy rights than federal law.5 Although a WMC victim could seek to pursue any of the foregoing causes of action, the case law citing claims other than “intrusion on seclusion” are limited.

    2. Elements of a Claim

      Currently, there are no cases providing Kentucky’s interpretation and its determination of the elements of the three types of invasion of privacy other than false light invasion of privacy, so WMC victims should refer to the Restatement (Second) of Torts § 652A and persuasive authority interpreting it to evaluate whether they may have viable claims.

      (1) False light invasion of privacy

      1. The false light in which the other was placed would be highly offensive to a reasonable person;

      2. The publisher had knowledge of, or acted in reckless disregard of the falsity of the publicized matter and the false light in which the other was placed.6

    3. Cases

      1. Douglas v. Stokes, 149 S.W. 849 (Ky. Ct. App. 1912)

        • Procedural Posture: Defendant photographer appealed from jury verdict finding him liable for $2,500 in damages to plaintiff for invasion of privacy.

        • Law: Invasion of privacy (intrusion)

        • Relevant Facts: Siamese twins were born to plaintiff and his wife. They failed to thrive, and after their death, plaintiff employed Douglas, a photographer, to photograph the naked corpse. It was agreed that Douglas would take 12 photographs and no more. Douglas made and delivered the photographs to plaintiff, but, contrary to his agreement, he made other photographs from the negative, and he filed one in the US copyright office; a copyright was issued to him on the photo on January 12, 1909. Plaintiff sued Douglas for damages for the use of the negative, alleging that it was done without the will and consent of parents, and that the exposure of the photos humiliated them. Plaintiffs sought $10,000 in damages, and the jury awarded them $2,500. Douglas appealed.

        • Outcome: The court affirmed finding that the defendant photographer had abused his authority, and the confidentiality placed in his hands to serve the customer. The court explained, “the bargain between the customer and the photographer includes, by implication, an agreement that the prints taken from the negative are to be appropriated to the use of the customer only.”7 In this instance, where the corpse of the children was in the parents’ custody and control, the photographer had “no authority to make the photographs, except by their authority, and when he exceeded his authority, he invaded their right.”8

        • Special Notes: The court noted that the case could not be distinguished from one involving a photograph of a living person, especially given the sensitive subject matter.

      2. McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882 (Ky. 1981)

        • Procedural Posture: Discretionary review of the Kentucky Supreme Court.

        • Law: Invasion of privacy (false light); defamation/libel

        • Relevant Facts: Plaintiff attorney was contacted by a prospective client about the possibility of his representing her in two narcotic-related criminal charges. About the same time, respondents, two reporters for the Louisville Times, were investigating alleged harassment of the drug community by narcotics agents and other local police. In the course of their investigation, the reporters interviewed prospective client, who told them that plaintiff attorney had offered to represent her for a contingent fee, and that he had told her that he would use part of the fee to “fix” the cases or bribe the judge. The Louisville Times then published a front-page article authored by the two reporters, which described the results of the investigation, including the repetition of the allegations of bribery and a “fix.” Plaintiff attorney sued the two reporters and the Courier-Journal and Louisville Times Company, which owns and operates the Times, alleging (1) libel, for publishing the allegation of a “fix” or bribery, even though the charge admittedly could not be sustained; and (2) invasion of plaintiff attorney’s right of privacy. The trial judge granted summary judgment to the defendants. The appeals court affirmed.

        • Outcome: The court reversed and found that defendants’ article was defamatory, and that the doctrine of “neutral reportage” did not apply. The court also found that plaintiff had set forth a viable claim for false light invasion of privacy. Although he could not collect damages for both invasion of privacy and defamation, the court explained that he could still pursue both claims.

        • Special Notes: The decision was centered on the interaction between freedom of the press and invasion of privacy, and in this case, the court found that private individuals (as opposed to public figures) deserved increased protections from defamations, in part because unlike public persons, they had no easy access to the self-help remedy of responding to defamatory falsehoods through the news media. Moreover, private figures do not voluntarily expose themselves to the public in a way intended to invite scrutiny.9

    4. Practice Pointers

      • Kentucky adopted the Restatement (Second) of Torts regarding the damages recoverable for invasion of privacy. Accordingly, in Kentucky, one with a viable claim for invasion of privacy could recover for: (1) the harm to his interest in privacy resulting from the invasion; (2) his mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; (3) special damages of which the invasion is a legal cause.10

      • The Kentucky Supreme Court, like several other courts, has noted that an action for invasion of privacy (false light) and an action for defamation “are closely allied,” and has explained that “[a]n injured party may seek relief through both causes of action, arising out of the same publication, but he is limited to only one recovery.”11

      • The Kentucky Supreme Court has held that there is no grant of redress for the invasion of privacy by oral publication.12

    1. Brents v. Morgan, 299 S.W. 967 (Ky. 1927). 

    2. Id. 

    3. See McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 887 (Ky. 1981). 

    4. Id. (citing Restatement (Second) of Torts § 652A). 

    5. Commonwealth v. Wasson, 842 S.W.2d 487, 497 (Ky. 1992) (“We have recognized protection of individual rights greater than the federal floor in a number of cases.”). 

    6. McCall, 623 S.W.2d at 888 (finding that plaintiff put forth sufficient evidence to support a claim of intrusion on seclusion where he asserted that defendant reporters had falsely published articles suggesting that he had offered to bribe a judge, and that he unethically had offered to charge a potential client a contingency fee to represent her in a criminal case). 

    7. Douglas v. Stokes, 149 S.W. 849, 850 (Ky. Ct. App. 1912). 

    8. Id. 

    9. McCall, 623 S.W.2d at 886. 

    10. Id. at 888 (citing Restatement (Second) of Torts § 625H (1976)). 

    11. Id. 

    12. Brents v. Morgan, 299 S.W. 967, 971-72 (Ky. Ct. App. 1927). 

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  2. Defamation

    1. Introduction

      If a sexual photo or video is published online, it may be accompanied by defamatory statements about the victim.

    2. Elements of a Claim

      To state a cause of action for defamation, a plaintiff must allege: (1) Defamatory language; (2) About the plaintiff; (3) Which is published; and (4) Causes injury to the plaintiff’s reputation.1

    3. Cases

      1. Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781 (Ky. 2005)

        • Procedural Posture: Petition for review of lower court ruling reversing trial court decision failing to take a directed verdict in favor of Wal-Mart and co-defendant, a store supervisor.

        • Law: IIED; eavesdropping; defamation

        • Relevant Facts: Plaintiffs, employees who were terminated for unauthorized removal of company property and violating company policy—specifically for eating candy from open or torn bags removed from store shelves that had been taken to store’s “claims area” to be processed and then either discarded or returned—sued their former employer Wal-Mart, and a store supervisor, alleging IIED, defamation and invasion of privacy. Among other things, plaintiffs produced evidence that the supervisor had engaged in approximately 40 hours of audio and video surveillance in the claims area of the store without the employees’ knowledge. Plaintiffs also argued that they were defamed when their supervisor made “slanderous” comments about them to other Wal-Mart employees following their terminations. The camcorder being used to surreptitiously record the employees had audio and video capabilities. Notably, defendants showed that the Wal-Mart employee handbook specifically addressed eating claims candy, and provides that it amounted to dishonesty that would result in immediate termination. The trial court entered judgment for the employees, and the court of appeals reversed, finding that the trial court had erred by failing to direct a verdict in favor of the defendants.

        • Outcome: The court affirmed in part, reversed in part, and vacated/remanded in part. The court held that plaintiffs failed to make out a viable claim of IIED because they were at-will employees, and their allegations that their supervisor had manufactured an excuse to fire them to save his own job did not amount to “outrageous” conduct. The court also upheld the jury’s verdict finding that plaintiffs had a viable claim for defamation because it found that the supervisor’s statement that “there was more to” plaintiffs’ termination than the theft of claims candy could be reasonably interpreted as an assertion that plaintiffs had stolen items in addition to claims candy.2 However, the court found that the plaintiffs’ eavesdropping claim failed because they could not prove damages stemming from any illegal surveillance on the part of the defendant supervisor. Although the plaintiffs had structured their eavesdropping claim as one for “invasion of privacy,” the court interpreted it under KRS 526.060.3

      2. McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882 (Ky. 1981)

        • Procedural Posture: Discretionary review of the Kentucky Supreme Court.

        • Law: Invasion of privacy (false light); defamation/libel

        • Relevant Facts: Plaintiff attorney was contacted by a prospective client about the possibility of his representing her in two narcotic-related criminal charges. About the same time, respondents, two reporters for the Louisville Times, were investigating alleged harassment of the drug community by narcotics agents and other local police. In the course of their investigation, the reporters interviewed prospective client, who told them that plaintiff attorney had offered to represent her for a contingent fee, and that he had told her that he would use part of the fee to “fix” the cases or bribe the judge. The Louisville Times then published a front-page article authored by the two reporters, which described the results of the investigation, including the repetition of the allegations of bribery and a “fix.” Plaintiff attorney sued the two reporters and the Courier-Journal and Louisville Times Company, which owns and operates the Times, alleging (1) libel, for publishing the allegation of a “fix” or bribery, even though the charge admittedly could not be sustained; and (2) invasion of plaintiff attorney’s right of privacy. The trial judge granted summary judgment to the defendants. The appeals court affirmed.

        • Outcome: The court reversed and found that defendants’ article was defamatory, and that the doctrine of “neutral reportage” did not apply. The court also found that plaintiff had set forth a viable claim for false light invasion of privacy. Although he could not collect damages for both invasion of privacy and defamation, the court explained that he could still pursue both claims.

          Special Notes: The decision was centered on the interaction between freedom of the press and invasion of privacy, and in this case, the court found that private individuals (as opposed to public figures) deserved increased protections from defamations, in part because unlike public persons, they had no easy access to the self-help remedy of responding to defamatory falsehoods through the news media. Moreover, private figures do not voluntarily expose themselves to the public in a way intended to invite scrutiny.4

    4. Practice Pointers

      • The Kentucky Supreme Court recognizes a series of qualified or conditional privileges, such as that where the communication is one in which the party has an interest, and it is made “to another having a corresponding interest,” it is privileged if it was made in good faith and without actual malice.”5

      • “When a qualified privilege is established, the presumption of malice disappears, and thus ‘false and defamatory statements will not give rise to a cause of action unless maliciously uttered.’”6 Accordingly, even where a plaintiff is not a public figure, he or she may have to show actual malice for a defamation claim.

    1. Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 793 (Ky. 2004).  

    2. Id. at 798. 

    3. Id. at 799-800. 

    4. McCall, 623 S.W.2d at 886. 

    5. Id. at 796 (quoting Baker v. Clark, 218 S.W. 280, 285 (Ky. 1920)). 

    6. Id. at 797 (quoting Stewart v. Williams, 218 S.W.2d 948, 950 (Ky. 1949)). 

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  3. Trespass to Chattels

    1. Introduction

      In a situation where a defendant interferes with a WMC victim’s disc of photos or the victim’s possession of personal, private images, the victim could try to bring a claim for trespass to chattels to recover money damages or other equitable relief. A trespass to chattels claim may be elevated to one of conversion in a situation where the victim all together loses his or her possession of the property in question.

    2. Elements of a Claim

      Occurs when a defendant “intentionally intermeddles with personal property in the possession of the plaintiff and . . . impairs the property as to its condition, quality, to value, or . . . causes physical harm to the possessor or to some person or thing in which the possessor has a legally protected interest.1 Typically, the intent necessary is “the intent to intermeddle with the particular property.”2

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      Kentucky has adopted the definition of trespass to chattels set forth in the Restatement (Second) of Torts § 217, and under such a definition, the claim requires specific intent, and cannot arise from a defendant’s negligent conduct.3 Accordingly, a WMC victim seeking to pursue such a claim must ensure that he or she can show that the defendant intended to interfere with his or her property before moving forward.

    1. Ingram Trucking, Inc. v. Allen, 372 S.W.3d 870, 872 (Ky. Ct. App. 2012). 

    2. Id. (citing Restatement (Second) of Torts § 217). 

    3. Id. 

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  4. Conversion

    1. Introduction

      A WMC victim could try to bring a conversion claim to recover money damages or equitable relief if a defendant appropriates the victim’s private photos or images or publishes them for his or her own benefit and refuses to return them to the victim despite his or her requests.

    2. Elements of a Claim

      To state a cause of action for conversion, a plaintiff must allege: (1) Plaintiff has legal title to the converted property; (2) Plaintiff has possession of the property or the right to possess it at the time of the conversion; (3) Defendant exercised dominion over the property in a manner which denied the plaintiff’s rights to use and enjoy the property, and which was to the defendant’s own use and beneficial enjoyment; (4) Defendant intended to interfere with plaintiff’s possession; (5) Plaintiff made some demand for the property’s return, which the defendant refused; (6) Defendant’s act was the legal cause of plaintiff’s loss of property; and (7) Plaintiff suffered damage by the loss of the property.1

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      A WMC victim who seeks to recover for a conversion would be entitled to limited damages amounting to the fair market value of the property converted. Accordingly, damages may be minimal where the conversion claim centers on a personal photograph or something similar, which has little actual economic value.2

    1. Kentucky Ass'n of Counties v. McClendon, 157 S.W.3d 626, 632 n. 12 (Ky. 2005) (citing 90 C.J.S. Trover & Conversion § 4 (2004)). 

    2. 13 David J. Leibson, Kentucky Practice: Tort Law § 8.1 (2008) (explaining that conversion involves an intentional interference so severe as to force the defendant to pay the fair market value of the property converted). 

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  5. Breach of Contract/Promissory Estoppel

    1. Introduction

      A WMC victim could bring a breach of contract claim where the parties have a contract involving consent to use an image of the plaintiff (be it for advertising purposes or otherwise). However, in such instances, there will also likely be a signed release in place to bar the victim’s claims. Thus, it is unlikely that a WMC victim will bring either a breach of contract claim. Also, a WMC victim could seek to recover on a theory of promissory estoppel where the parties do not have a contract, but had an agreed-upon arrangement that was violated to a WMC victim’s detriment. For instance, where the parties took nude photographs together, and promised that they would not market or distribute them, but one party broke that promise, the other could potentially proceed on a theory of promissory estoppel.

    2. Elements of a Claim

      To state a cause of action for breach of contract, a plaintiff must allege: (1) Existence of a valid agreement; (2) Breach; and (3) Damages suffered as a result of the breach.1

      To state a cause of action for promissory estoppel, a plaintiff must allege: (1) Party reasonably relies on a statement of another; (2) Party reasonably relies on the statement of another; (3) Party materially changes his or her position in reliance on the statement.2

    3. Cases

      1. Douglas v. Stokes, 149 S.W. 849 (Ky. Ct. App. 1912)

        • Procedural Posture: Defendant photographer appealed from jury verdict finding him liable for $2,500 in damages to plaintiff for invasion of privacy.

        • Law: Invasion of privacy (intrusion)

        • Relevant Facts: Siamese twins were born to plaintiff and his wife. They failed to thrive, and after their death, plaintiff employed Douglas, a photographer, to photograph the naked corpse. It was agreed that Douglas would take 12 photographs and no more. Douglas made and delivered the photographs to plaintiff, but, contrary to his agreement, he made other photographs from the negative, and he filed one in the US copyright office; a copyright was issued to him on the photo on January 12, 1909. Plaintiff sued Douglas for damages for the use of the negative, alleging that it was done without the will and consent of plaintiff and his wife, and that the exposure of the photos humiliated them. Plaintiffs sought $10,000 in damages, and the jury awarded them $2,500. Douglas appealed.

        • Outcome: The court affirmed finding that the defendant photographer had abused his authority, and the confidentiality placed in his hands to serve the customer. The court explained, “the bargain between the customer and the photographer includes, by implication, an agreement that the prints taken from the negative are to be appropriated to the use of the customer only.”3 In this instance, where the corpse of the children was in the parents’ custody and control, the photographer had “no authority to make the photographs, except by their authority, and when he exceeded his authority, he invaded their right.”4

        • Special Notes: The court noted that the case could not be distinguished from one involving a photograph of a living person, especially given the sensitive subject matter.

    4. Practice Pointers

      Where a WMC victim hired a photographer to take photographs, and that photographer exceeds the scope of the parties’ agreement in any way, at least one Kentucky cases suggests that the plaintiff could posture the claim as one of breach of contract (as well as for invasion of privacy).

    1. Perkins Motors, Inc. v. Autotruck Fed. Credit Union, 697 S.W.2d 429, 430 (Ky. Ct. App. 1980). 

    2. Rivermont Inn, Inc. v. Bass Hotels & Resorts, Inc., 113 S.W.3d 636, 642 (Ky. Ct. App. 2003); see also Stephenson v. State Farm Ins. Co., 217 S.W.3d 878, 880 (Ky. Ct. App. 2007) (“Promissory estoppel can be invoked when a party reasonably relies on a statement of another and materially changes his position in reliance on the statement.”). 

    3. Douglas v. Stokes, 149 S.W. 849, 850 (Ky. Ct. App. 1912). 

    4. Id. 

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  6. Intentional Infliction of Emotional Distress (“IIED”)

    1. Introduction

      The victim of the nonconsensual online publication of intimate photographs or videos may sue under the common law tort outrage in situations where the material’s publication caused the victim to suffer severe emotional distress.

    2. Elements of a Claim

      To state a cause of action for IIED, a plaintiff must allege: (1) Wrongdoer’s conduct must be intentional or reckless; (2) Wrongdoer’s conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality; (3) There must be a causal connection between the wrongdoer’s conduct and the emotional distress; and (4) The emotional distress must be severe.1

    3. Cases

      1. Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781 (Ky. 2005)

        • Procedural Posture: Petition for review of lower court ruling reversing trial court decision failing to take a directed verdict in favor of Wal-Mart and co-defendant, a store supervisor.

        • Law: IIED; eavesdropping; defamation

        • Relevant Facts: Plaintiffs, employees who were terminated for unauthorized removal of company property and violating company policy—specifically for eating candy from open or torn bags removed from store shelves that had been taken to store’s “claims area” to be processed and then either discarded or returned—sued their former employer Wal-Mart, and a store supervisor, alleging IIED, defamation and invasion of privacy. Among other things, plaintiffs produced evidence that the supervisor had engaged in approximately 40 hours of audio and video surveillance in the claims area of the store without the employees’ knowledge. Plaintiffs also argued that they were defamed when their supervisor made “slanderous” comments about them to other Wal-Mart employees following their terminations. The camcorder being used to surreptitiously record the employees had audio and video capabilities. Notably, defendants showed that the Wal-Mart employee handbook specifically addressed eating claims candy, and provides that it amounted to dishonesty that would result in immediate termination. The trial court entered judgment for the employees, and the court of appeals reversed, finding that the trial court had erred by failing to direct a verdict in favor of the defendants.

        • Outcome: The court affirmed in part, reversed in part, and vacated/remanded in part. The court held that plaintiffs failed to make out a viable claim of IIED because they were at-will employees, and their allegations that their supervisor had manufactured an excuse to fire them to save his own job did not amount to “outrageous” conduct. The court also upheld the jury’s verdict finding that plaintiffs had a viable claim for defamation because it found that the supervisor’s statement that “there was more to” plaintiffs’ termination than the theft of claims candy could be reasonably interpreted as an assertion that plaintiffs had stolen items in addition to claims candy.2 However, the court found that the plaintiffs’ eavesdropping claim failed because they could not prove damages stemming from any illegal surveillance on the part of the defendant supervisor. Although the plaintiffs had structured their eavesdropping claim as one for “invasion of privacy,” the court interpreted it under KRS 526.060.3

      2. Kroger Company v. Willgruber, 920 S.W.2d 61 (Ky. 1996)

        • Procedural Posture: Discretionary review of jury verdict granting plaintiff $750,400 for a claim of breach of contract, IIED, and punitive damages arising from his treatment by his former employer.

        • Law: IIED

        • Relevant Facts: Plaintiff was employed by the defendant Kroger Company for 32 years as a well-respected and reliable employee before he was fired. According to the facts, he came into contact with a new marketing manager in 1990, and when that manager ordered him to contact competitors and obtain their price lists, he initially refused, but later relented and set the prices as ordered. Unknown to plaintiff, his plant manager wrote fictitious monthly evaluation reports describing his allegedly poor performance, and he was later offered a chance to resign with the promise of a job as an assistant manager at a store in South Carolina. He resigned, but there was no job in South Carolina, and when he returned, he had an emotional breakdown. The trial court rejected Kroger’s request that it grant a directed verdict on plaintiff’s claim of IIED; the court found that he presented no proof of IIED.

        • Outcome: On review, the Kentucky Supreme Court disagreed and determined that Kroger’s misrepresentation to plaintiff that he would be eligible for another position if he resigned when it knew no such position was available amounted to IIED. Also, the fact that plaintiff was sensitive did not change the analysis: “Kroger was well aware of [plaintiff’s] precarious emotional health. It possessed extensive and current information concerning the status of his depression as well as those factors having the greatest impact on his emotional well being: his employment opportunities and financial plight.”4

        • Special Notes: Because the plaintiff had put forth sufficient evidence of IIED. The trial court correctly submitted the punitive damages instruction to the jury.

      3. Craft v. Rice, 671 S.W.2d 247 (Ky. 1984)

        • Procedural Posture: On appeal from appeals court decision affirming trial court’s directed verdict for the defendant based on a one-year statute of limitations on plaintiff’s claim for IIED

        • Law: IIED

        • Relevant Facts: Plaintiffs were a married couple living in the Ashland Coal weighmaster’s house where husband worked weighing coal and coal trucks. He was indicted for second-degree forgery for allegedly falsifying weigh tickets, and was ultimately acquitted. From May to July of 1978, Rice, a former Boyd County Sherriff, allegedly harassed wife by keeping her under surveillance at home and work, telling her over the CB radio that he would put her husband in jail, and driving so as to force her vehicle into an opposing lane of traffic. It is claimed that Rice also used the CB radio to talk to husband, who complained of resulting mental anguish. Wife’s complaints included chronic diarrhea, colitis, and a nervous condition, along with mental anguish. It is undisputed that no touching occurred to either plaintiff. Plaintiffs filed suit more than 1 year after the last act of harassment. The trial court found that their claims were “personal injury” claims subject to a one-year statute of limitations, and the Crafts appealed.

        • Outcome: Reversed, and adopting the Restatement definition of IIED, finding that the Kentucky five-year statute of limitations for tortious conduct should apply rather than the one-year statute of limitations that applies to personal injury claims: “Because the essence of the tort is the interference with [the right to be free of emotional distress arising from conduct by another] and not whether any bodily harm results, the five-year statute of limitations applies.”5 The court explained that Kentucky had previously recognized a cause of action for tortious conduct in cases involving humiliating methods of debt collection or embarrassment caused by an employer’s methods, but that at the heart of these claims, a person has a “right to be left alone,” and that tort should be available here.6

    4. Practice Pointers

      • Kentucky adopted the elements of IIED set forth in the Restatement (Second) of Torts.7

      • Kentucky also refers to IIED as the tort of “outrage.”8

      • In Kentucky, punitive damages may be available for particularly egregious IIED violations.

    1. Craft v. Rice, 671 S.W.2d 247, 249 (Ky. 1984) (citing Restatement (Second) of Torts § 46)). 

    2. Stringer, 151 S.W.3d at 798. 

    3. Id. at 799-800. 

    4. Kroger Company v. Willgruber, 920 S.W.2d 61, 67 (Ky. 1996). 

    5. Craft, 671 S.W.2d at 251. 

    6. Id. at 250-51. 

    7. See id. 

    8. Stringer, 151 S.W.3d at 786. 

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  7. Negligent Infliction of Emotional Distress (“NIED”)

    1. Introduction

      The victim of a nonconsensual online publication of intimate photographs or videos could try under the common law tort of negligent infliction of emotional distress in several states, in situations where the material’s negligent publication caused the victim to suffer severe emotional distress.

    2. Elements of a Claim

      To state a cause of action for NIED, a plaintiff must allege: (1) Wrongdoer’s conduct must be negligent; (2) The emotional distress must be severe; (3) There must be a causal connection between the wrongdoer’s conduct and the emotional distress; and (4) There must be a showing of physical contact (the “impact rule” applies).1

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      Kentucky subscribes to the “impact” rule for NIED claims, under which a claim for negligence cannot lie unless there is a showing that physical contact occurred.2

    1. Deutsch v. Shein, 597 S.W.2d 141, 145-46 (Ky. 1980) (citing Morgan v. Hightower’s Adm’r, 63 S.W.2d 21, 22 (Ky. 1942)). 

    2. Steel Tech., Inc. v. Congletone, 234 S.W.3d 920, 930 (Ky. 2007). 

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  8. Conspiracy

    1. Introduction

      If a sexual photo or video is published online, it may have been published by several people, rather than just one. Moreover, although one person actually posts an image, several other individuals may make comments or take actions that intensify the situation. For instance, another co-conspirator who did not post the original image may add sound. In such instances, a WMC victim could try to include a claim of civil conspiracy with his or her other allegations.

    2. Elements of a Claim

      To state a cause of action for conspiracy, a plaintiff must allege: (1) Corrupt or unlawful agreement; (2) Between two or more persons; (3) To do by concert of an action an unlawful act, or to do a lawful act by unlawful means.1

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      For liability to attach based on a civil conspiracy theory, Kentucky courts have stressed that the law requires the “actual commission of the tortious act or a concert of action where substantial assistance has been provided.”2

    1. See Montgomery v. Milam, 910 S.W.2d 237, 239 (Ky. 1995). 

    2. James v. Wilson, 95 S.W.3d 875, 898 (Ky. Ct. App. 1995). 

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