Oregon Common Law

  1. Invasion of Privacy

    1. Introduction

      An invasion of privacy is an intentional intrusion, physical or otherwise, upon plaintiff’s private affairs or concerns, which would be offensive to a reasonable person.1 The four different types of invasion of privacy recognized in Oregon are set forth below. One of the key elements of an invasion of privacy claim is publicity. “The form of invasion of the right of privacy . . . depends on publicity given to the private life of the individual. ‘Publicity,’ [for an invasion of privacy claim] differs from ‘publication,’ as that term is used . . . in connection with liability for defamation. ‘Publication,’ in that sense, is a word of art, which includes any communication by the defendant to a third person. ‘Publicity,’ on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded substantially certain to become one of public knowledge. The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public.2

    2. Elements

      1. False Light

        1. Publicity of a matter concerning another that places that person before the public in a false light;

        2. The false light would be highly offensive to a reasonable person; and

        3. The actor has 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.3

      2. Intrusion on Seclusion

        1. Intentional intrusion (physically or otherwise);

        2. Upon the solitude or seclusion of another or his private affairs or concerns;

        3. Where the intrusion4 would be highly offensive to a reasonable person.5

      3. Publication of Private Facts

        1. The plaintiff had private information which otherwise would have remained private;

        2. the defendant made that private information known to the public or to a large number of people; and

        3. The publication of that information would have been offensive to a reasonable person.6

      4. Appropriation of Name or Likeness7

        1. Plaintiff’s name or likeness is publicized;

        2. Plaintiff did not consent to the publication.8

    3. Cases

      1. Oliver v. Pac. N.W. Bell Tel. Co., 53 Or. App. 604, 632 P.2d 1295 (Or. Ct. App. 1981)

        • Procedural Posture: On appeal from lower court decision dismissing plaintiff’s claim for invasion of privacy based on his employer’s clandestine recording of his phone calls at his place of employment.

        • Law: Invasion of privacy; federal wiretapping law (eavesdropping).

        • Facts: Plaintiff sought general and punitive damages of more than $20 million from his former employer, Pacific Northwest Bell Tel. Company, and employees and officials of his former employee alleging that during his employment and immediately following his departure, his phone calls to and from the company were secretly monitored in violation of his right to privacy and the federal wiretapping laws.

        • Outcome: The court affirmed the dismissal of plaintiff’s invasion of privacy case because plaintiff failed to put forth enough specific evidence to show that his calls were monitored. The court distinguished an Ohio case in which the court held that “listening in” was established by inference, explaining that the “means” and “motive” for interception of plaintiff’s calls were unclear.9 The court explained that it was “reluctant” to adopt the a test of “mechanical eavesdropping” because plaintiff had been unable to present any evidence specific to the monitoring of his calls, and only one court had adopted the circumstantial evidence test applied in LeCrone v. Ohio Bell. “We are reluctant to adopt such a test here, particularly since plaintiff’s proof does not even rise to the LeCrone level. Absent any conflict in the facts as to whether plaintiff’s telephone conversations were intruded upon, it is not necessary to determine whether any eavesdropping was upon personal or business matters.”10

        • Special Notes: The court mentioned that after LeCrone, no other case has found circumstantial evidence of eavesdropping to be enough.11

      2. Leggett v. First Interstate Bank of Or., N.A., 86 Or. App. 523, 739 P.2d 1083 (Or. Ct. App. 1987)

        • Procedural Posture: On appeal from jury verdict awarding plaintiff money damages for claims against her former employer concerning the facts surrounding her discharge.

        • Law: Invasion of privacy; employment discrimination; breach of contract; wrongful discharge.

        • Facts: Plaintiff had a severe fear of spiders, and her colleagues harassed her because of that fear. After one incident in which she had to leave the office because a colleague had dropped a rubber spider on her desk, plaintiff’s employer referred her to a clinical psychologist (Metzger). Plaintiff continued to have problems at work with absenteeism. Her department head recommended that she be put on medical leave. Plaintiff did not release Metzger to allow him to speak to her employer, but employer met with Metzger without her consent to discuss plaintiff. Metzger advised that he did not think a transfer would solve plaintiff’s problem, and defendant terminated her. Plaintiff recovered for lost earnings, punitive, lost earnings and general damages. She was awarded $237,000.

        • Outcome: The court affirmed the jury’s award because defendant’s act of obtaining Metzger’s information without plaintiff’s consent was an invasion of privacy. However, the court held that there was no support for wrongful discharge because plaintiff never showed that arachnophobia is a mental handicap and/or that she was wrongfully discharged.

        • Special Notes: The court explained that punitive damages were available: “[T]he conduct that the jury determined was wrongful was not defendant’s agent’s communication with Metzger, but rather defendant’s act of garnering information from him. He was verbally informed of what information defendant was seeking and why it was being sought, but the gravamen of plaintiff’s claim was the act of garnering confidential medical information. Garnering—be it through eavesdropping, stealing files, or making a verbal request—is unprotected nonexpressive conduct and is not protected against an award of punitive damages.”12

      3. Magenis v. Fisher Broad., Inc., 103 Or. App. 555, 798 P.2d 1106, 1108 (Or. Ct. App. 1990)

        • Procedural Posture: On appeal from lower court’s dismissal of plaintiffs’ claims for invasion of privacy by false light and intrusion upon seclusion based on the running of the applicable statute of limitations

        • Law: Invasion of privacy (false light); invasion of privacy (intrusion upon seclusion).

        • Facts: Plaintiffs, a couple, and their four minor children sued defendants alleging violations of their rights to privacy when defendants accompanied police officers executing a warrant to search plaintiffs’ residence and filmed the raid with a video camera and placed the broadcast on television on the local news without plaintiffs’ consent. The broadcast intimated that plaintiffs were involved with stolen vehicles and narcotics. Plaintiffs waited more than a year to bring their claims. Plaintiffs argued that the two-year “catch-all” statute of limitations applied to their false light privacy claim rather than the one-year statute of limitations applicable to defamation/libel/slander claims.

        • Outcome: The court affirmed the dismissal of plaintiffs’ false light claim and held that the one year statute of limitations applicable to defamation claims applies equally to false light privacy claims. Although no Oregon court had addressed the question of what statute to apply, the court determined that “to hold otherwise would permit a plaintiff to elect the longer limitation period of ORS 12.110(1) simply by characterizing a defamation claim as one for false light. We conclude that, when a claim characterized as false light alleges facts that also constitute a claim for defamation, the claim must be filed within the period for bringing a defamation claim.”13 The court also affirmed the dismissal of plaintiffs’ intrusion claim, holding that plaintiffs had not sufficiently proven that defendants’ trespass was “highly offensive” as required by the law.14

        • Special Notes: The court also explained that although the statute of limitations was tolled as to the plaintiffs’ four minor children, because plaintiffs failed to seek retraction under ORS 30.160, they could not bring their false light claim. The “retraction statute” provides in part: “(1) In an action for damages on account of a defamatory statement published or broadcast in a newspaper, magazine, other printed periodical, or by radio, television or motion pictures, the plaintiff shall not recover general damages unless: (a) A correction or retraction is demanded but not published . . .”15

      4. Dean v. Guard Publ’g Co., 73 Or. App. 656, 699 P.2d 1158 (Or. Ct. App. 1985)

        • Procedural Posture: On appeal from the lower court’s order dismissing plaintiff’s complaint alleging false light invasion of privacy with prejudice

        • Law: Invasion of privacy (false light).

        • Facts: Plaintiff sued defendant, a publisher of a Eugene, Oregon daily newspaper, which ran a story regarding an alcohol rehabilitation center, which included a photograph of plaintiff. Plaintiff alleged that the photograph implied that he was a patient at the rehabilitation facility, violating his right to privacy and damaging his reputation.

        • Outcome: The court held that Oregon would recognize a false light invasion of privacy claim. The court explained that “[t]o place a person in a false light is akin to defamation. . . If the false light is detrimental, it is foreseeable that the person will suffer an injury to reputation and possible mental distress and other harms. A person is entitled to damages as redress for those injuries first as much as he or she would be for the more traditional torts such as slander and libel. . . . The [Oregon] constitution does not require that we recognize the false light theory of invasion of privacy, but these sections show a general public policy to provide redress for wrongs of this kind. The interests which a false light claim protects are similar to the interests which previously recognized torts protect, and the harms it remedies are similar to the harms previously recognized as calling for a remedy recognizing false light as a tort is a natural extension of previous law.”16

        • Special Notes: The court reversed and remanded, so that plaintiff could amend his complaint under the newly established law.

      5. Anderson v. Fisher Broad. Cos., Inc., 300 Or. 352, 712 P.2d 803 (Or. 1986)

        • Procedural Posture: Petition for review from lower court decision denying plaintiff’s claims for tortious misappropriation of his image to determine the appropriate scope of Oregon claims of invasion of privacy.

        • Law: Invasion of privacy (appropriation of image).

        • Facts: Plaintiff was videotaped at the scene of a car accident in which he was injured. He was recognizable, and the video depicted him bleeding and in pain while receiving emergency medical treatment. Defendant did not use the videotaped photographs or report the accident on is regular news program. However, some time later, and without seeking plaintiff’s consent, defendant used a brief excerpt showing plaintiff to illustrate a promotional spot advertising a special news report about a new system for dispatching emergency medical help. The lower courts dismissed because defendant adequately showed that the footage was “newsworthy.”

        • Outcome: The court reversed and reinstated the decision of the trial court, holding that plaintiff showed no wrongful element in plaintiff’s conduct. However, in so holding, the court dove into a lengthy discussion of invasion of privacy claims, and determined that the truthful publication of a fact about a private individual that the individual reasonably prefers to keep private, without more, can constitute an invasion of privacy under Oregon law. “In the present case, plaintiff does not claim that KATU-TV’s promotional spots portrayed him as an accident victim in a manner implying that he endorsed its forthcoming program about emergency medical services, and the record on summary judgment suggests no such inference. His claim is not for the economic value of such an endorsement, nor for any gain unjustly realized by the broadcaster from appropriating a photograph belonging to plaintiff. The videotape was made at the accident scene by defendant’s cameraman, and the identity of the accident victim was immaterial. Rather, plaintiff claims damages for mental distress from its publication. Without a showing that plaintiff’s picture was either obtained or broadcast in a manner or for a purpose wrongful beyond the unconsented publication itself, that claim fails.”17

        • Special Notes: The court went through a detailed discussion of the importance of the right to privacy, and explained that where a defendant’s conduct is designed to cause severe mental distress, defendant can be held to have violated a “duty not to invade plaintiff’s privacy” by appropriating and publicizing his or her image.18

      6. Trout v. Umatilla Cnty. Sch. Dist., 77 Or. App. 95, 712 P.2d 814 (Or. Ct. App. 1985)

        • Procedural Posture: Defendant appeals from judgments entered on jury verdicts for $75,000 in favor of each of the three plaintiffs teachers who had been subject to disciplinary actions by the school board.

        • Law: Invasion of privacy (publication of private facts).

        • Facts: Plaintiffs were employed as teachers and coaches at the local high school. After an end-of-the-year teachers’ retirement party at which they had been drinking, plaintiffs were in a car accident. The school board voted to take disciplinary action against plaintiffs on June 9; they rescinded the action on the advice of counsel, but reinstated it two weeks later. The media reported on the events, and some of the accounts included detailed interviews with the school board chairman and school officials. As to the invasion of privacy claim, plaintiffs argued that defendants improperly took disciplinary action against the plaintiffs as a result of conduct totally beyond the scope of plaintiffs’ employment, and also wrongfully publicized numerous items about the plaintiffs, the car accident, the disciplinary proceedings, and the purported evidence.

        • Outcome: The court held that the lower court should have granted the district’s motion to withdraw the invasion of privacy claim because the facts at issue were not “private.” “Even if [the] District disciplined plaintiffs for conduct outside their employment, that conduct was neither private nor secluded. The party and the accident were both public events, not private affairs into which [the] District pried. . . Plaintiffs also failed to prove any actionable publicity by [the] District. In a claim for invasion of privacy by publication of facts, the facts disclosed must be private, not public. Many of plaintiffs’ complaints – for example, that District published the fact that plaintiffs had consumed alcohol before the accident or that [the] District had been making an effort to discourage drinking and drug abuse – were public knowledge and cannot support a claim for invasion of privacy. The plaintiffs were disciplined and the nature of that discipline was public information. Comments made by the superintendent to the effect that plaintiffs were disciplined under their coaching contracts because Oregon’s Fair Dismissal Law makes it difficult to fire teachers is a comment on why the discipline was chosen, not a statement about plaintiffs’ personal lives.”19

        • Special Notes: The court also explained that an “outrageous conduct” claim requires the intentional and purposeful infliction of “actual mental suffering” on the plaintiff where “the means of inflicting the injury were ‘extraordinary.’”20

      7. McLain v. Boise Cascade Corp., 271 Or. 549, 533 P.2d 343 (Or. 1975)

        • Procedural Posture: Appeal from lower court decision granting a nonsuit on plaintiff’s invasion of privacy claim and affirming the jury’s verdict of $250 in damages for plaintiff’s civil trespass claim.

        • Law: Invasion of privacy; civil trespass.

        • Facts: Plaintiff strained his back while working for the defendant employer, and he sought worker’s compensation for a term of 12 months. A consultant determined that plaintiff may be faking his injury, and found that he was surreptitiously working part-time for a mortuary while he was ostensibly disabled. Plaintiff returned to work in an easier job, but he claimed that he was unable to work due to the continued pain in his hip. Plaintiff consulted an attorney, who filed a request for a hearing before the Workmen’s Compensation Board asking that plaintiff’s temporary disability payments be reinstated. The head of the company’s Workmen’s Compensation program hired two investigators who surreptitiously took 18 rolls of movie film of plaintiff while he was engaged in various activities on his property outside his home such as mowing his lawn, rototilling his garden, and fishing from a bridge near his home. Plaintiff was unaware of the film until the hearing, when it was introduced. Plaintiff sought damages for a violation of privacy, and for the investigators’ trespass upon his land.

        • Outcome: Affirming the jury’s decision granting plaintiff $250 in damages for alleged civil trespass, and dismissing plaintiff’s invasion of privacy claim. The court explained that plaintiff could not bring a claim for invasion of privacy because the surveillance and picture-taking were done unobtrusively, and the trespass was only on the periphery of the plaintiff’s property. “In this case, we think the court below properly granted a nonsuit for the cause of action for invasion of privacy. In the first place, the surveillance and picture taking were done in such an unobtrusive manner that plaintiff was not aware that he was being watched and filmed. In the second place, plaintiff conceded that his activities which were filmed could have been observed by his neighbors or passersby on the road running in front of his property. Undoubtedly, the investigators trespassed on plaintiff’s land while watching and taking pictures of him, but it is also clear that the trespass was on the periphery of plaintiff’s property and did not constitute an unreasonable surveillance ‘highly offensive to a reasonable man.’”21

        • Special Notes: The court also found that the lower court did not err in striking the claim for punitive damages for plaintiff’s trespass claim. “Assuming that the trespass in this case was intentional, there was no evidence of intent to harm, harass, or annoy the plaintiff. The surveillance took place near the boundaries of plaintiff’s property. The trespass was unlawful, but did not injure plaintiff, nor was it intended to injure him. We think the court properly withdrew from consideration by the jury the claim for punitive damages on account of the trespass.”22

      8. Castagna v. W. Graphics Corp., 38 Or. App. 403, 509 P.2d 291 (Or. Ct. App. 1979)

        • Procedural Posture: Appeal from lower court’s decision granting defendant summary judgment on plaintiff’s invasion of privacy claim.

        • Law: Invasion of privacy (appropriation of likeness/image).

        • Facts: Plaintiff sought damages for tortious invasion of privacy for the allegedly unconsented distribution by defendant of posters bearing his photograph. He conceded that he had consented to the publication and sale of his photograph, but he claimed that his consent was obtained as a result of a misrepresentation and that the defendants’ publication exceeded the scope of his consent.

        • Outcome: The court affirmed the grant of summary judgment for the defendant because plaintiff’s consent created an “absolute privilege,” and plaintiff failed to allege that defendant misrepresented the manner in which the picture would be used, or how broad the publication would be. Accordingly, he could not state viable claim for invasion of privacy.

        • Special Notes: The court stated that although the plaintiff may have a cause of action for his services in posing as a model, because plaintiff could not show that his consent was obtained through fraud, it was not a cause of action for invasion of privacy.23

      9. Humphers v. First Interstate Bank of Or., 298 Or. 706, 696 P.2d 527 (Or. 1985) (en banc)

        • Procedural Posture: Review of lower courts’ decision on whether mother had a cause of action under theories of invasion of privacy or breach of confidential relationship for decedent doctor’s conduct in assistance in helping to reveal plaintiff’s identity to her daughter long after plaintiff had given her daughter up for adoption.

        • Law: Invasion of privacy; breach of confidential relationship.

        • Facts: Plaintiff gave her daughter up for adoption. Later on, her daughter sought the help of the doctor who assisted with the birth to find the appropriate paperwork. The doctor fabricated a medical necessity for the daughter to gain access to her medical records, and she was able to track down her mother, who did not want to be found. Plaintiff sought relief from the estate of the deceased doctor.

        • Outcome: The court granted the motion to dismiss the invasion of privacy claim. Although plaintiff’s interest qualified as a “‘privacy’ interest,’ that does not require the judgment of a court or jury, especially where there are already records statutes in place designed to protect the birth parents/children. Rather, the court held that the plaintiff could establish a claim for a breach of confidence since his legal duties compelled him to abide by the proper rules, and he did not do so in providing plaintiffs’ biological daughters with her records.

        • Special Notes: The court went through a detailed discussion of the seminal Oregon cases regarding invasions of privacy.24

      10. Ault v. Hustler Mag., Inc., 860 F.2d 877 (9th Cir. 1988)

        • Procedural Posture: On appeal from the dismissal of plaintiff’s claims against Hustler magazine for libel, invasion of privacy, intentional infliction of emotional distress, trespass, and conversion for magazine’s derogatory article about her.

        • Law: Invasion of privacy; trespass; conversion; intentional infliction of emotional distress; libel.

        • Facts: Plaintiff was a well-known anti-pornography lobbyist. Hustler published an article about her in the spring of 1985, accompanying the article with a photograph of plaintiff superimposed over the rear-end of a bent-over naked man. The article discussed Ault’s lobbying activities and characterized her organization as a “wacko group” that engaged in both censorship and intimidation in order to undermine the First Amendment. Plaintiff sued Hustler for damages alleging all four forms of invasion of privacy and other related claims.

        • Outcome: The court affirmed the dismissal of all of Ault’s claims, but reversed the lower court’s determination on sanctions. The court determined that she had no viable claim for invasion of privacy because the article was privileged opinion under the First Amendment. For that same reason, her claims of libel and intentional infliction of emotional distress failed too. The court also determined that she had no viable claim for trespass or conversion since she could not make out a viable claim for trespass, and the photograph in question belonged to the photographer, not to plaintiff.

        • Special Notes: In discussing misappropriation, the court noted that “using a picture without consent is actionable only when it injures the economic interests of the plaintiff due to commercial exploitation, or when the ‘picture was either obtained or broadcast in a manner or for a purpose wrongful beyond the uncontested publication itself.’”25

    4. Practice Pointers

      In considering a claim of intrusion upon seclusion, the Oregon Supreme Court has clarified that “[t]respass alone cannot automatically change an otherwise reasonable surveillance into an unreasonable one.”26 Rather, the key is whether the defendant’s conduct was “highly offensive,” considering factors such as “the extent of the intrusion, the context, conduct and circumstances surrounding the intrusion, the defendant’s motives, the setting into which defendant intruded, and the plaintiff’s expectation of privacy.”27

    1. Oliver v. Pac. N.W. Bell Tel. Co., 53 Or. App. 604, 632 P.2d 1295, 1298 (Or. Ct. App. 1981) (citing Restatement (Second) of Torts § 117 (1971)). 

    2. Morrow v. Morrow, Inc., 139 Or. App. 212, 911 P.2d 964, 968 (Or. Ct. App. 1996) (dismissing invasion of privacy claim of former employee because the offensive memo at issue was contained on the company’s computer and had not been publicized as required under the law). 

    3. Magenis v. Fisher Broad., Inc., 103 Or. App. 555, 798 P.2d 1106, 1108 (Or. Ct. App. 1990) (citing Dean v. Guard Publ’g Co., 73 Or. App. 656, 699 P.2d 1158 (Or. Ct. App. 1985)).  

    4. The Oregon Supreme Court has held that a person “intrudes” by “thrusting himself or herself in without invitation, permission, or welcome. A person acts intentionally when he or she either desires to cause the consequence of an act or believes that the consequence is substantially certain to result from the act. By definition then, an actor commits an intentional intrusion if the actor either desires to cause an unauthorized intrusion or believes that an unauthorized intrusion is substantially certain to result from committing the invasive act in question.”Mauri v. Smith, 32 Or. 476, 929 P.2d 307, 311 (Or. 1996) (holding that plaintiffs alleged a viable claim of intrusion on seclusion where the entrance by defendants into their private apartment without their permission could be construed as highly offensive to a reasonable person). 

    5. Magenis, 798 P.2d at 1110 (citing McLain v. Boise Cascade Corp., 271 Or. 549, 533 P.2d 343 (Or. 1975)); see also Mauri, 929 P.2d at 311-12. 

    6. See Tollefson v. Price, 247 Or. 398, 401-02, 430 P.2d 990, 992 (Or. 1967) (reversing and finding that the plaintiff sufficiently alleged a claim of publication of private facts). 

    7. The Oregon Supreme Court has never expressly adopted the Restatement statement of the tort of appropriation of name or likeness. See Ferdik v. ABC, Inc., No. 08-3001-CK, 2008 WL 4145858, at *4 (D. Or. Aug. 8, 2008). However, in Hamilton v. Crown Life Ins. Co., 246 Or. 1, 4, 423 P.2d 771, 772 (Or. 1967), the court assumed that, ‘the unauthorized publication of one’s name and the details of his personal life for commercial purposes has been, in this state, an actionable wrong.” Id. (affirming the trial court’s determination that the plaintiff had not stated a cause of action for invasion of right to privacy where plaintiff alleged no appropriation of a commercially valuable testimonial). 

    8. Hinish v. Meier & Frank Co., 166 Or. 482, 506, 113 P.2d 438 (Or. 1941) (holding that the signing of plaintiff’s name to a telegram urging the state’s governor to veto a bill was a tortious invasion of his privacy as his name/signature was used without his consent). The Hinish court first recognized the tort of invasion of privacy in Oregon. 166 Or. at 506. But see Anderson, 712 P.2d at 812 (holding that using a picture without consent is actionable only when it injures the economic interests of the plaintiff due to commercial exploitation, or when the picture was either obtained or broadcast in a manner or for a purpose wrongful beyond the unconsented publication itself) (citation omitted). 

    9. Oliver, 632 P.2d at 1298-99 (distinguishing LeCrone v. Ohio Bell Tel. Co., 201 N.E.2d 533 (Ohio Ct. App. 1963) (holding that a jury could find a prima facie case of interception where (1) there existed the means for interception; (2) such means existed for a substantial period of time; and (3) there was physical access to the means by a person with a motive)). 

    10. Id. at 1299. 

    11. Id

    12. Leggett v. First Interstate Bank of Or., 86 Or. App. 523, 739 P.2d 1983, 1087 (Or. Ct. App. 1987). 

    13. Magenis, 798 P.2d 1106 at1110. 

    14. Id

    15. Or. Rev. Stat. § 30.160(1)(a). 

    16. Dean, 699 P.2d at 1160. 

    17. Anderson, 712 P.2d at 813. 

    18. Id. at 807 (“The conduct must be designed to cause severe mental or emotional distress, whether for its own sake or as a means to some other end, and it must qualify as extraordinary conduct that a reasonable jury could find to be beyond the farthest reach of socially tolerable behavior.”). 

    19. Trout v. Umatillo Cnty. Sch. Dist., 77 Or. App. 95, 712 P.2d 814, 817-18 (Or. Ct. App. 1985). 

    20. Id. at 819. 

    21. McLain, 533 P.2d at 346. 

    22. Id. at 347. 

    23. Castagna v. W. Graphics Corp., 38 Or. App. 403, 590 P.2d 291, 294 (Or. Ct. App. 1979). 

    24. Humphers, 696 P.2d at 529-30. 

    25. Ault v. Hustler Mag., Inc., 860 F.2d 877, 883 (9th Cir. 1988) (citing Anderson, 719 P.2d at 813) (“Publication of . . . [a] photograph is not appropriation for commercial use simply because the medium itself is operated for profit.”). 

    26. McLain, 533 P.2d at 343. 

    27. Magenis, 798 P.2d at 1110 (citing Miller v. Nat’l Broad. Co., 187 Cal. App. 3rd 1463, 232 Cal. Rptr. 668 (Cal. Ct. App. 1986)). 

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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. However, it seems less likely that the statements would be oral than written statements (libel), e.g., comments accompanying the photo/video may state that the victim is infected with a sexually transmitted disease, is seeking sex in exchange for money, or has had abortions.

    2. Elements

      1. The making of a defamatory statement;

      2. The “publication” of the defamatory material; and

      3. A resulting special harm (unless the defamatory statement gives rise to a presumptive special harm.”1

    3. Cases

      1. Benassi v. Georgia-Pac., 62 Or. App. 698, 662 P.2d 760 (Or. Ct. App. 1983)

        • Procedural Posture: Appeal from lower court judgment awarding plaintiff former employee damages for defamatory statements made by defendant to another employee regarding the circumstances surrounding plaintiff’s discharge.

        • Law: Defamation.

        • Facts: Defendant company planned to expand its machinery construction division into the southeastern United States, and while plaintiff was on a business trip, he got into a dispute with a colleague while drinking. There were a couple of other incidents in which plaintiff was found to be misbehaving while drunk. He was terminated, and when rumors began to circulate about his departure, the management gathered the other employees and stated: “I gathered you all here to tell you why Mr. Benassi is no longer with the company. The man was drunk and misbehaving in a bar. The man had a drinking problem. Georgia-Pacific looks unkindly on this kind of conduct. It was not the first time. He had been warned.”2 Plaintiff alleged that he then could not find another job, and when he did secure employment, it paid less than his old position. Plaintiff sued for damages incurred from defendants’ defamation. Defendants claimed the affirmative defenses of truth and privilege.

        • Outcome: The court reversed and remanded holding that there was a question as to the truth of the statements that plaintiff was drunk in the purported incidents. The court also held that the jury could determine that it was unnecessary for Rivers to tell essentially every employee in the machinery construction division that plaintiff was ‘drunk and misbehaving,’ that he had a ‘drinking problem,’ and that any belief that Rivers may have had as to the necessity of doing so was unreasonable.”3 However, the court should have granted a directed verdict on the issue of damages because plaintiff could not show that the alleged slander prevented him from finding other employment.4

        • Special Notes: The defense of truth must be evaluated under the relevant circumstances. Here, it was not available because though defendant’s statements may have had some truth to them, there was a question as to how truthful they were, and as to whether they needed to be publicized as they were.

      2. Magenis v. Fisher Broad., Inc., 103 Or. App. 555, 798 P.2d 1106, 1108 (Or. Ct. App. 1990)

        • Procedural Posture: On appeal from lower court’s dismissal of plaintiffs’ claims for invasion of privacy by false light and intrusion upon seclusion based on the running of the applicable statute of limitations.

        • Law: Invasion of privacy (false light); invasion of privacy (intrusion upon seclusion).

        • Facts: Plaintiffs, a couple, and their four minor children sued defendants alleging violations of their rights to privacy when defendants accompanied police officers executing a warrant to search plaintiffs’ residence and filmed the raid with a video camera and placed the broadcast on television on the local news without plaintiffs’ consent. The broadcast intimated that plaintiffs were involved with stolen vehicles and narcotics. Plaintiffs waited more than a year to bring their claims. Plaintiffs argued that the two-year “catch-all” statute of limitations applied to their false light privacy claim rather than the one-year statute of limitations applicable to defamation/libel/slander claims.

        • Outcome: The court affirmed the dismissal of plaintiffs’ false light claim and held that the one year statute of limitations applicable to defamation claims applies equally to false light privacy claims. Although no Oregon court had addressed the question of what statute to apply, the court determined that “to hold otherwise would permit a plaintiff to elect the longer limitation period of ORS 12.110(1) simply by characterizing a defamation claim as one for false light. We conclude that, when a claim characterized as false light alleges facts that also constitute a claim for defamation, the claim must be filed within the period for bringing a defamation claim.”5 The court also affirmed the dismissal of plaintiffs’ intrusion claim, holding that plaintiffs had not sufficiently proven that defendants’ trespass was “highly offensive” as required by the law.6

        • Special Notes: The court also explained that although the statute of limitations was tolled as to the plaintiffs’ four minor children, because plaintiffs failed to seek retraction under ORS 30.160, they could not bring their false light claim. The “retraction statute” provides in part: “(1) In an action for damages on account of a defamatory statement published or broadcast in a newspaper, magazine, other printed periodical, or by radio, television or motion pictures, the plaintiff shall not recover general damages unless: (a) A correction or retraction is demanded but not published . . .”7

    4. Practice Pointers

      • The courts will apply the same statute of limitations for defamation actions, regardless of whether the action is made intentionally or negligently: “The law of defamation protects the interest in reputation—the interest in acquiring, retaining and enjoying a reputation as good as one’s character and conduct warrant.’ . . . An action to secure damages for an injury in a situation of this kind is an action for defamation, regardless of whether the publication was intentionally, negligently or inadvertently made.”8

      • Victims should tread carefully where they have a defamation claim that could also be characterized as a false light invasion of privacy claim. In those circumstances, courts apply the one-year statute of limitations applicable to defamation claims.9 The key inquiry will be whether the claim arises from the harmful disclosure of confidential information (true or false) rather than the publication of defamatory information.10

    1. L&D of Or., Inc. v. Am. States Ins. Co., 171 Or. App. 17, 14 P.3d 617, 620 & 622 (Or. Ct. App. 2000) (citing Muresan v. Philadelphia Romanian Pentecostal Church, 154 Or. App. 465, 473, 962 P.2d 711 (Or. Ct. App. 1998)) (holding that derogatory racial comments against plaintiff were not defamation per se because “however distasteful,” they did not imply that plaintiff did not perform his work as an automotive technician suitably). 

    2. Benassi v. Georgia-Pac., 62 Or. App. 698, 662 P.2d 760, 763 (Or. Ct. App. 1983). 

    3. Id. at 764. 

    4. Id. at 764-65. 

    5. Magenis, 798 P.2d 1106 at1110. 

    6. Id

    7. Or. Rev. Stat. § 30.160(1)(a). 

    8. Bradbury v. Teacher Standards & Prac. Comm’n, 947 P.2d 1145, 1147 (Or. Ct. App. 1997) (citing Coe v. Statesman-Journal Co., 277 Or. 117, 120, 560 P.2d 254 (Or. 1977) (holding that defamation action must be brought within the one-year period specified in the statute of limitations statute regardless of whether the defendant acted intentionally or negligently in making the defamatory statements at issue)). 

    9. See, e.g., Magenis, 798 P.2d at 1106 (holding that “when a claim characterized as false light alleges facts that also constitute a claim for defamation, the claim must be filed within the period for bringing a defamation claim.”); but see Bradbury, 947 P. 2d at 1148-49 (distinguishing between an invasion-of-privacy and a defamation claim). 

    10. Bradbury, 947 P. 2d at 1148-49 (because plaintiff’s claim arising from the Teacher Standards and Practices Commission’s wrongful disclosure of plaintiff’s confidential information arose from the “harmful disclosure of information,” rather than the “publication of defamatory information,” the claim was not governed by the one-year statute of limitations applicable to defamation claims). 

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  3. Trespass

    1. Introduction

      Trespass is an unlawful interference or invasion to another’s exclusive right to possession of property. There must be an affirmative act causing intrusion to constitute an act of trespass. Mere presence on the property without an act will not be subject to tort liability. A trespass need not be done for the specific purpose of causing a trespass, and it becomes intentional when the acts leading to the invasion were done with knowledge that a trespass would result. Such a claim is unlikely to be relevant to a WMC plaintiff.

    2. Elements

      1. An interference with plaintiff’s property;

      2. That interferes with his or her use and enjoyment of the property; and

      3. Causes plaintiff damages.1

    3. Cases

      1. Ault v. Hustler Mag., Inc., 860 F.2d 877 (9th Cir. 1988)

        • Procedural Posture: On appeal from the dismissal of plaintiff’s claims against Hustler magazine for libel, invasion of privacy, intentional infliction of emotional distress, trespass, and conversion for magazine’s derogatory article about her.

        • Law: Invasion of privacy; trespass; conversion; intentional infliction of emotional distress; libel.

        • Facts: Plaintiff was a well-known anti-pornography lobbyist. Hustler published an article about her in the spring of 1985, accompanying the article with a photograph of plaintiff superimposed over the rear-end of a bent-over naked man. The article discussed Ault’s lobbying activities and characterized her organization as a “wacko group” that engaged in both censorship and intimidation in order to undermine the First Amendment. Plaintiff sued Hustler for damages alleging all four forms of invasion of privacy and other related claims, including a claim of trespass.

        • Outcome: The court affirmed the dismissal of all of Ault’s claims for failure to state a claim on which relief can be granted, but reversed the lower court’s determination on sanctions. The court determined that she had no viable claim for invasion of privacy because the article was privileged opinion under the First Amendment. For that same reason, her claims of libel and intentional infliction of emotional distress failed too. The court also determined that she had no viable claim for trespass or conversion since she had not alleged the elements of a civil trespass, and the photograph in question belonged to the photographer rather than to her.

        • Special Notes: In discussing misappropriation, the court noted that “using a picture without consent is actionable only when it injures the economic interests of the plaintiff due to commercial exploitation, or when the ‘picture was either obtained or broadcast in a manner or for a purpose wrongful beyond the uncontested publication itself.’”2

    4. Practice Pointers

      • A trespass is a separate tort from the tort of private nuisance, and they are subject to different statutes of limitations. An action for trespass has a six-year statute of limitations, while an action for nuisance has only a two-year statute of limitations.

      • Punitive damages will not be awarded on an action for trespass where the defendant acted with the good-faith belief that he has a right to take possession, and the issue of good faith is a question of fact for the jury.

      • “Mental suffering is not compensable in the ordinary trespass or conversion action. There is, however, an exception to the general rule, and if mental suffering is the direct and natural result of a specific trespass or other tort, a jury can take such suffering into account.”

    1. Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790, 792 (Or. 1959) (holding that defendant’s conduct in causing chemical substances to be deposited upon the plaintiffs’ land constituted a trespass rather than a nuisance). 

    2. Ault, 860 F.2d at 883 (citing Anderson, 719 P.2d at 813) (“Publication of . . . [a] photograph is not appropriation for commercial use simply because the medium itself is operated for profit.”). 

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  4. 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 a claim of conversion in a situation where the victim all together loses his or her possession of the property in question.

    2. Elements

      An intentional exercise of dominion or control over a chattel which interferes with the right of another to control it.1

    3. Cases

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

    4. Practice Pointers

      One Oregon appeals court explained that the “elements of a claim for trespass to chattels are, for relevant purposes, the same [as the elements of conversion]; the only arguable differences are the extent of the interference and remedy.”2

    1. Scott v. Jackson Cnty., 244 Or. App. 484, 260 P.3d 744, 752-53 (Or. Ct. App. 2011) (citing Restatement (Second) of Torts § 222A (1965)) (rabbit breeder brought trespass to chattel claim and other related claims against the local government for their seizing, euthanizing, and giving up for adoption, the rabbits she had been raising on her property). 

    2. Id. (citing Mustola v. Toddy, 253 Or. 658, 664, 456 P.2d 1004 & n.4 (Or. 1969) (“There is a strong argument or abolishing the distinction between conversion and other types of interference, such as trespass.”); Morrow v. First Interstate Bank, 118 Or. App. 164, 168, 847 P.2d 411, rev. dismissed, 317 Or. 580, 858 P.2d 448 (Or. 1993) (trespass to chattels has been described as the “little brother of conversion”)). 

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  5. Conversion

    1. Introduction

      Oregon adopted the definition of conversion from the Restatement (Second) of Torts § 222A (1965).1 Conversion is the wrongful exercise of dominion over property in exclusion of the owner’s right, or the withholding of property from the owner’s possession under a claim inconsistent with the owner’s rights. It may be applicable to a WMC victim if an individual publishes an online photograph of the victim without her consent. In such instances, the victim could sue to seek money damages, recover the property, or obtain some other form equitable relief.

    2. Elements

      1. Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.

      2. In determining the seriousness of the interference and justice of requiring the actor to pay the full value, the following factors are important:

        1. the extent and duration of the actor’s exercise of dominion or control;

        2. the actor’s intent to assert a right in fact inconsistent with the other’s right of control;

        3. the actor’s good faith;

        4. the extent and duration of the resulting interference with the other’s right of control;

        5. the harm done to the chattel;

        6. the inconvenience and expense caused to the other.2

    3. Cases

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

    4. Practice Pointers

      “Mental suffering is not compensable in the ordinary trespass or conversion action. There is, however, an exception to the general rule, and if mental suffering is the direct and natural result of a specific trespass or other tort, a jury can take such suffering into account.”3

    1. Id. (citing Mustola, 253 Or. at 664 (adopting the definition of conversion set forth in the Restatement (Second) of Torts § 222A (1965))). 

    2. Scott, 260 P.3d at 752 (citing Restatement (Second) of Torts § 222A (1965)) (rabbit breeder brought conversion claim and other related claims against the local government for their seizing, euthanizing, and giving up for adoption, the rabbits she had been raising on her property). 

    3. Douglas, 445 P.2d at 593 (holding that plaintiffs could recover for mental suffering arising from the defendant’s invasion of their home because “it is not so impersonal in its effect upon the householders that we can say as a matter of law that mental distress is never compensable”). 

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  6. Breach of Contract/Promissory Estoppel

    1. Introduction

      A WMC victim could bring a breach of contract/promissory estoppel 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 or promissory estoppel claim.

    2. Elements

      1. A promise;

      2. The promisor reasonably expects to induce the promisee’s action or forbearance;

      3. The promise acts in reliance on the promisor’s promise; and

      4. The promise is damaged by his reliance.

    3. Cases

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

    4. Practice Pointers

      Oregon courts have adopted the Restatement (Second) of Contracts § 90(1) (1981)’s definition of “promissory estoppel”: “A promise, which the promisor should reasonably expect to induce action or forbearance on the part of the promise or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.”1

    1. Restatement (Second) of Contracts § 90(1) (1981); see Cocchiara v. Lithia Motors, Inc., No. CC 06-2731-L7, CA A144652, SC S060100, 2013 WL 856248, at *5-6 (Or. Jan. 7, 2013) (noting that Oregon has adopted the Restatement formula of promissory estoppel). 

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  7. Intentional Infliction of Emotional Distress (“IIED”)/Outrage

    1. Introduction

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

    2. Elements

      1. Defendants intended to cause plaintiff severe emotional distress or knew with substantial certainty that their conduct would cause such distress;

      2. That defendants engaged in outrageous conduct—i.e., conduct extraordinarily beyond the bounds of socially tolerable behavior; and

      3. That defendants’ conduct in fact cause plaintiff severe emotional distress.1

    3. Cases

      1. Marleau v. Truck Ins. Exch., 383 Or. 82, 37 P.3d 148 (Or. 2001)

        • Procedural Posture: Petition for review to determine whether defendant had a duty to defend the insured plaintiff and his business partner in a tort action alleging intentional infliction of emotional distress.

        • Law: IIED.

        • Facts: Plaintiffs own a log home construction business. Defendant issued a commercial general liability policy naming Marleau, d/b/a Oregon Trail as the insured. The policy covered bodily injury, property damage, and personal injury liability of the insured. The policy specifically excluded “personal injury . . . arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity.”2 Following the construction of a home for customers (“the Parletts”), a dispute arose. The Parletts sued the plaintiffs and Oregon Trail, alleging breach of contract, breach of warranty, negligence, negligence per se, conversion, fraud and IIED—the latter claim remains the one at issue here. The IIED claim alleged that the plaintiffs conspired to harass, annoy, disgrace, humiliate, discredit and cause severe emotional distress the Parletts with the intent of causing them to suffer so much distress that they would sell their home, move from the community, and abandon all claims against the plaintiffs. Examples of the allegedly tortious conduct included: telling the Parletts that their bank loan had been cancelled when it had not; informing lender representatives that the Parletts were not paying their debt; telling local attorneys that the Parletts were divorcing, and other salacious things. After settling their action with the Parletts, plaintiffs sued the insurer to recover the costs of defending plaintiffs during the first year of pendency of the action. Plaintiffs argued that because the Parletts’ claim for intentional infliction of emotional distress also stated a claim for invasion of privacy and defamation—covered offenses—they could recover their costs.

        • Outcome: Affirming the lower courts’ finding granting summary judgment for defendant because the insurance policy does not cover the conduct alleged in the IIED claim. The court held that the Parletts’ allegations did not state a claim for invasion of privacy or defamation. As to the invasion of privacy claim, because, if at all, the statements at issue were communicated only to one or two individuals, they were not publicized under the law of false light invasion of privacy.3 Moreover, the allegations did not amount to a claim for defamation because none of the disparaging statements at issue were written, and plaintiffs were unable to allege the “special damages” required by slander.4

        • Special Notes: The court noted that “[s]poken words are actionable per se in Oregon only if they are words tending to injure the plaintiff in his or her profession or business, or if they impute to plaintiff the commission of a crime involving moral turpitude.”5

      2. Hetfeld v. Bostwick, 136 Or. App. 305, 901 P.2d 986 (Or. Ct. App. 1995)

        • Procedural Posture: Appeal from lower court’s dismissal of plaintiff’s claim for IIED filed against his former wife, and her present husband.

        • Law: IIED.

        • Facts: The plaintiff, ex-husband of defendant and her new husband, alleged that defendant unlawfully withheld visitation by making his children unavailable, disparaged his character to his children, assaulted plaintiff in the presence of his children, caused the children to use another surname, and encouraged the children to identify with defendant’s new husband as their father. The complaint also alleged that defendant ex-wife stalked and harassed a female friend of plaintiff with the intention of intimidating her and preventing her from testifying in court on plaintiff’s behalf, soliciting and fermenting discord in plaintiff’s relationship with his second wife, and hiring a lawyer for his children and making them privy to correspondence and proceedings relevant to her effort to terminate and limit plaintiff’s visitation with the children.

        • Outcome: The court affirmed the lower court’s dismissal of plaintiff’s claim for IIED because defendant’s conduct did not transgress the bounds of socially tolerable conduct. Although the defendants’ behavior was not cordial, the behavior was common between individuals involved in a contested divorce. “Although the parties’ open hostility certainly increases the likelihood that they might cause one another emotional harm, there is nothing inherent in their relationship as former spouses that requires a greater degree of care. . . [and] the sad truth is that when a relationship breaks down, the children of the relationship often become the instruments of the parties’ pursuit to cause each other pain.”6

        • Special Notes: The dissent held that the jury should have been permitted to determine whether defendants’ conduct exceeded the bounds of socially tolerable under the circumstances, regardless of the fact that the parties’ were in the midst of a contentious custody battle.7

      3. Patton v. J.C. Penney Co., Inc., 301 Or. 117, 719 P.2d 854 (Or. 1986)

        • Procedural Posture: Review of lower court decision to determine whether plaintiff could allege a claim of intentional infliction of emotional distress and wrongful discharge.

        • Law: Wrongful discharge; IIED.

        • Facts: Defendant, J.C. Penney, hired plaintiff in 1969, and he worked in Eugene until, in 1980, he was transferred to Portland. Although there was no rule prohibiting fraternizing with employees, plaintiff was advised in 1981 to break off a relationship he had with a female co-worker. Though he would not break ties with the co-worker, he was named employee of the month, and employee of the year. Plaintiff was subsequently warned about his fraternization with co-employee again, and then told that because his job performance was unsatisfactory, he would be fired if he showed no improvement. Plaintiff was denied a request for transfer, and he was then terminated for unsatisfactory job performance.8 He brought claims for wrongful discharge and IIED against J.C. Penney. The lower court rejected his wrongful discharge and distress claims, but reversed on the distress claim. On review, the court considered whether the alleged manner in which plaintiff was discharged was “outrageous” such that he could bring an emotional distress claim.

        • Outcome: The court affirmed the court of appeals as to the wrongful discharge issue, but reversed as to the intentional infliction of emotional distress claim, holding that although the defendant’s conduct was “rude, boorish, tyrannical, churlish, and mean,” it was not “outrageous in the extreme.”9 The court explained that for an intentional infliction of emotional distress claim, the “key focus. . . is not on the result, but on the purpose and the means used to achieve it.”10

        • Special Notes: The court explained that because the employer could discharge the employee at will, the fact that the employee was discharged over something that was not an “extraordinary transgression” does not make it “wrongful discharge.”11

      4. Checkley v. Boyd, 198 Or. App. 110, 107 P.3d 651 (Or. Ct. App. 2005)

        • Procedural Posture: On appeal from lower court’s grant of summary judgment to defendants on plaintiff’s claims arising from their purported manipulation of plaintiff’s brother, his developmentally disabled ward.

        • Law: IIED; wrongful use of a civil proceeding; eavesdropping.

        • Facts: Plaintiff was a guardian and conservator for his disabled brother Shad Wagner (“Wagner”). He brought claims on behalf of himself and Wagner against defendants, the Boyds, alleging that acting under the direction of the local Congregation of Jehovah’s Witnesses, they manipulated and coerced Wagner into believing that plaintiff was stealing from him, abusing him, etc. The situation became untenable and plaintiff had to put Wagner in a special facility, and could not speak with him regularly. He claimed the defendants’ actions destroyed his relationship with Wagner and caused him severe emotional distress. At trial, the plaintiff offered as evidence recordings he had made of telephone calls between Wagner and the defendants recorded without the parties’ consent in the plaintiff’s home. The trial court withheld the recordings finding them inadmissible under the law.

        • Outcome: The court reversed summary judgment on the IIED claim, and also held that the trial court had improperly excluded the tape-recorded conversations under the homeowners’ exception at Or. Rev. Stat. § 165.640(1).12 The court explained that defendant’s conduct was proper because he could make the recordings in his own home. The court reversed the finding of summary judgment for the defendants, holding that there was at least a reasonable question of fact on whether the defendants’ manipulation of Wagner was “outrageous”under the law.13

        • Special Notes: The court had a full record to review on appeal, and the facts showed that defendants were intentionally causing more conflict by encouraging Wagner to lie to plaintiff, etc. The court relied on the following evidence: the defendants knew of Wagner’s vulnerability due to his disability; the defendants tried to convince Wagner that plaintiff was neglecting and stealing from Wagner. Accordingly, there were “triable issues of fact on the element of outrageousness.”14 Moreover, the court found significant evidence that Wagner’s cognitive limitations made him less able to initiate change, so it was possible to infer that it was the defendants pressing the complaint about plaintiff’s care and providing the motivation for Wagner to pursue a guardianship proceeding for Wagner.15

      5. Simpson v. Burrows, 90 F. Supp. 2d 1108 (D. Or. 2000)

        • Procedural Posture: Magistrate judge findings of fact and conclusions of law following bench trial (the parties’ waived a jury trial).

        • Law: Intimidation; IIED; invasion of privacy; libel.

        • Facts: Plaintiff and her partner, June Swanson, purchased Christmas Valley Lodge and Restaurant from the Park and Recreation district to run the lodge as a restaurant and bar in the rural Oregon town. Plaintiff and Swanson renovated the Lodge after taking possession, and business was good at first. But they soon began receiving anonymous letters suggesting violence, targeting them because of their sexual orientation. For instance, one letter stated that the sale of the Lodge to “two lesbians” “brings an immoral and unfavorable element into our community,” and the sale to “perverts” is the start of a “revolting development.”16 Other individuals in the community then began receiving anonymous letters as well. Plaintiff’s partner left, and the letters continued. Local law enforcement began to investigate and traced the letters back to defendant Burrows and his family, and defendant eventually pleaded guilty to the charges levied against him. Regardless, plaintiff’s business suffered, and she eventually sold the Lodge at a loss of $63,000. Plaintiff sued defendant for civil damages, alleging intentional infliction of emotional distress, intimidation, invasion of privacy, and libel.

        • Outcome: The court granted plaintiff damages on her IIED, a violation of ORS 166.155 (intimidation in the second degree); invasion of privacy claim (public disclosure of private facts). The court did not find any liability on plaintiff’s claim for libel because the statements were either opinion or do not show enough facts to be susceptible of being proven actionable under a defamation theory. The court awarded plaintiff $52,500 on her economic damages for her invasion of privacy and economic claims, and $5,000 in punitive damages. The court affirmed the lower court.

        • Special Notes: The court denied defendants’ request for attorneys’ fees as well.17

    4. Practice Pointers

      • IIED is synonymous with the tort of “outrage.”18

      • “Outrageous conduct” is “conduct that is “an extraordinary transgression of the bounds of socially tolerable conduct.”19

      • In addition to causing extreme emotional distress, another basis on which extreme outrage can be found “is the defendant’s knowledge that the plaintiff is especially sensitive, susceptible, and vulnerable to injury through mental distress at the particular conduct. . .”20

      • The Oregon Supreme Court has held that although a conversion ordinarily does not cause a property owner sufficient mental anguish to merit an award of damages for pain and suffering, and the amount of damages is limited to the value of the property converted, “if mental suffering is the direct and natural result of the conversion, the jury may properly consider mental distress as an element of damages. . . where evidence of genuine emotional damage is supplied by aggravated conduct on the part of the defendant.”21 Accordingly, a conversion claim may be a viable basis for a claim of IIED.

    1. McGanty v. Staudenraus, 321 Or. 532, 901 P.2d 841, 850-53 (Or. 1995). 

    2. Marleau v. Truck Ins. Exch., 333 Or. 82, 37 P.3d 148, 150 (Or. 2001) 

    3. Id. at 154. 

    4. Id. at 155. 

    5. Id. at 155 (citing Davis v. Sladden, 17 Or. 259, 261, 21 P. 140, 142 (Or. 1889)). 

    6. Hetfeld v. Bostwick, 136 Or. App. 305, 901 P.2d 986, 988-89 (Or. Ct. App. 1995) (noting that the statutory procedures relevant to divorce and custody proceedings are designed to deal with the conduct alleged by plaintiff). 

    7. Id. at 989 (Leeson, J., dissenting). 

    8. Patton v. J.C. Penney Co., Inc., 301 Or. 117, 719 P.2d 854, 856 (Or. 1986). 

    9. Id. at 857-58. 

    10. Id. at 858 (citing Brewer v. Erwin, 287 Or. 435, 457, 600 P.2d 398 (Or. 1979) (holding that plaintiff could state a claim of intentional infliction of emotional distress for defendant’s effort to bully her from her apartment by using physical violence and threats against her, disconnecting her utilities, and “demolishing” her building under her feet)). 

    11. Id. at 857. 

    12. The court relied on in part State v. Capell, 156 Or. App. 582, 966 P.2d 232 (Or. Ct. App. 1998), holding that mother’s surreptitious recording of defendant’s phone call discussing an illegal drug transaction was admissible because the call was pertinent to plaintiff’s child’s well-being. The court explained, “To the extent that there could be any doubt about what Congress would have intended in light of the facts of the case, the legislative history underlying the act expressly states that Congress did not want ‘to make it a crime for a father to listen in on his teenage daughter or some such related problem.’” Id. at 234 (citing Anonymous v. Anonymous, 448 F.2d 677-679 (2d Cir. 1977) (holding that the husband’s recording of his wife’s telephone calls with her eight-year old daughter regarding a custody dispute did ‘not rise to the level’ of a violation of the statute”)). 

    13. Checkley v. Boyd, 198 Or. App. 110, 107 P.3d 651, 661 (Or. Ct. App. 2005). 

    14. Id. at 661-62. 

    15. Id

    16. Simpson v. Burrows, 90 F. Supp. 2d 1108, 1114 (D. Or. 2000). 

    17. Id. at 1131. 

    18. Pakos v. Clark, 253 Or. 113, 123-24, 453 P.2d 682 (Or. 1969) (citing 1 Restatement of Torts (Second) § 46). 

    19. McGanty, 901 P.2d at 841. 

    20. Turman v. Cent. Billing Bur., Inc., 279 Or. 443, 568 P.2d 1382, 1384 (Or. 1977) (citing Prosser on Torts 57-58, § 12 (4th ed. 1971)) (blind plaintiff made out a viable claim for outrageous conduct when she was hospitalized for stress after repeated harassment from a collection agency for a medical clinic she regularly visited). 

    21. Fredeen v. Stride, 269 Or. 369, 525 P.2d 166 (Or. 1975) (holding that plaintiff could recover for emotional distress damages and punitive damages from defendant veterinarian arising from his involvement in the wrongful conversion of her dog). 

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

    1. Introduction

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

    2. Elements

      1. Serious emotional distress accompanied by a physical injury or an additional underlying tort; and

      2. Defendant’s tortious conduct was not intentional.

    3. Cases

      1. Hammond v. Cent. Lane Commcn’s, 312 Or. 17, 816 P.2d 593 (Or. 1991) (en banc)

        • Procedural Posture: Petition for review of lower court decisions on plaintiff’s claim for damages based on theories of negligent and reckless infliction of severe emotional distress.

        • Law: NIED.

        • Facts: Plaintiff’s husband was unresponsive, and she called 9-1-1. The operator concluded based on the information she got from plaintiff that plaintiff’s husband was dead, and she communicated this to the dispatch center. But plaintiff claimed her husband was still alive at that time. Plaintiff and her husband lived in an unincorporated area in the county, and the emergency response was delayed significantly; the ambulance arrived after a 45-minute wait. Plaintiff brought a claim for NIED and other related claims. In regards to the NIED claim, plaintiff asserted that defendants erred in treating her call as a “deceased person” call, advertising that she would receive emergency medical care, without telling her that such services would not be sent to the unincorporated area where she lived, failing to provide emergency services as advertised, misleading her to believe she would get services in short order, and failing to ensure that she got emergency services as advertised. The lower court granted defendants summary judgment, and the court of appeals affirmed, holding that plaintiff had no claim against defendants because she was not a “direct victim” of defendants’ negligence.

        • Outcome: The court affirmed and held that the Oregon Supreme Court would not revisit the three isolated situations in which it would allow someone to recover for emotional distress. Because plaintiff could not show that defendant owed her a duty, or that her distress was a foreseeable consequence of her husband’s injury, the court dismissed her claim. Also, the court would not adopt the Restatement (Second) of Torts § 436, which permits recovery, explaining “[t]his court will not lightly overturn precedent, especially when the precedent has been followed for a long time.”1 Plaintiff also had no claim for reckless infliction of emotional distress when she could not show that defendants’ conduct was anything more than negligent.2

        • Special Notes: The partial concurrence/dissent stated that though it agreed with the result, it disagreed with the fact that the majority based its decision on its adherence to past precedent: “[T]he court’s adherence to its own proscription will tend not only to distort its opinions but, if strictly applied, also to vitiate the common-law tradition of judicial lawmaking. . . A growing number of jurisdictions in the United States recognize and protect a person’s right to be free from negligently inflicted emotional distress without requiring either physical injury or an independent underlying tort. I believe that this court should join those jurisdictions and recognize negligent infliction of severe emotional distress as an independent cause of action. In my view, psychic well-being is entitled to as much legal protection as physical well-being. The right to be free from severe emotional distress should not depend on whether the distress was intentionally, recklessly, or negligently inflicted.”3

    4. Practice Pointers

      Like several other jurisdictions, Oregon state courts do not allow a plaintiff to recover for negligent infliction of emotional distress where he or she cannot show that the injury in question was reasonably foreseeable and that he or she suffered some type of physical injury alongside the emotional distress. Because NIED has an injury requirement, and WMC victims often suffer only mental injuries.

    1. Hammond v. Cent. Lane Commcn’s, 312 Or. 17, 816 P.2d 593, 598 (Or. 1991) (en banc) (citing Keltner v. Wash. Cnty., 310 Or. 499, 504, 800 P.2d 752 (1990)). 

    2. Id. at 599. 

    3. Id. at 600 (Unis, J., concurring in part and dissenting in part). 

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  9. Prima Facie Tort

    1. Introduction

      The Oregon Supreme Court expressly declined to recognize a claim of “prima facie tort” in 1975, because “[i]n Oregon, we do not need to adopt a broad principle of liability as a specific tort category in order to evade the rigidities of existing causes of action.”1

    2. Elements

      Similar to a claim of intentional infliction of emotional distress, involving malice. The elements of prima facie tort were never fully defined as the Oregon Supreme Court declined to recognize the tort.2

    3. Cases

      Because Oregon courts do not recognize a claim of prima facie tort, there are no relevant Oregon cases.

    4. Practice Pointers

      There is no prima facie tort claim in Oregon.

    1. Nees v. Hocks, 27 Or. 210, 536 P.2d 512, 514 (Or. 1975) (rejecting “prima facie tort” claims in Oregon). 

    2. Id. at 513 (en banc) (“We used the term [prima facie tort] in dictum in Wampler v. Palmerton, 250 Or. 65, 79-80, 439 P.2d 601 (Or. 1968)), and may have been referring to it in dictum in Mandal v. Hoffman Constr. Co., 227 Or. 248, 527 P.2d 387 (Or. 1974)). We are of the opinion that the term serves no purpose in Oregon and we will advance the jurisprudence of this state by eliminating it.”) 

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  10. 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 does the actual posting of an image, several other individuals may be make comments or take actions that intensify the situation. For instance, although one person posts an image, another co-conspirator may add sound. In such cases, a plaintiff could try to make out a claim of conspiracy along with its other allegations.

    2. Elements

      1. Two or more persons (and for this purpose, a corporation is a person);

      2. An object to be accomplished;

      3. A meeting of minds on the object or course of action;

      4. One or more unlawful overt acts; and

      5. Damages as the proximate result thereof.1

    3. Cases

      1. Osborne v. Fadden, 225 Or. App. 431, 201 P.3d 278 (Or. Ct. App. 2009)

        • Procedural Posture: Appeal from lower court order granting plaintiffs, husband and wife, an SPO against plaintiff’s ex-husband and his current wife.

        • Law: Civil conspiracy to stalk petitioners.

        • Facts: The Osbornes sought SPOs against ex-husband and his current wife. The Osbornes alleged that defendants had repeatedly entered their information into websites offering mortgage loans, magazine subscription and music services, resulting in at least 50 bills for unwanted services. The subscriptions hurt the Osbornes’ credit rating. Plaintiff Mrs. Osborne also alleged that her ex-husband’s new wife had sent her emails posing as plaintiff’s best friend. She had also sent Mrs. Osborne’s employer emails posing as the custody evaluator, and emails to plaintiff Mr. Osborne’s employer seeking to get him fired. The trial court entered two SPOs, a money judgment and an order certifying compliance with federal domestic firearm laws. The court determined that there was sufficient evidence that the defendants had conspired to stalk the plaintiffs. The defendants appealed asserting that there was insufficient evidence of an agreement between defendants to engage in the disputed conduct. The appeals court found sufficient circumstantial evidence of a conspiracy because the emails and solicitations used information about Mrs. Osborne’s friends, family and children and personal information that could have only been supplied by her ex-husband.

        • Outcome: The court overturned the SPOs and money judgment because the emails and telephone solicitations did not put plaintiffs in fear for their personal safety, or the personal safety of a member of their immediate family or household.2 The court explained that although “the volume and nature of e-mails and telephone calls generated by [defendant Mrs. Fadden] was troubling and offensive to plaintiffs . . .none of those contacts would cause petitioners to have a reasonable apprehension about their personal safety. Even the sexual solicitations received by [Mrs. Osborne] would not do that, because there is no evidence that the calls were obscene or threatening—the callers merely indicated that they were responding to an invitation to contact her.”3 The court also noted that because the respondents had engaged in a civil conspiracy, the evidence against each one is imputed to the other. Accordingly, both defendants were in “the same legal position.”4

        • Special Notes: Even though there was enough evidence for a civil conspiracy, where there was not enough evidence to uphold the SPOs against one of the defendant, it was insufficient as to both of them.

    4. Practice Pointers

      • “The primary purpose of a conspiracy must be to cause injury to another.”5

      • “In a civil conspiracy, a criminal act is not necessary to establish liability.”6

      • “A civil conspiracy is not an independent tort, in the absence of a statute or unusual circumstances . . . [and t]he damage in a civil conspiracy flows from the overt acts and not from the conspiracy.”7 Accordingly, where the overt act is insufficient to support a finding in favor of the victim, the determination that a conspiracy existed merely allows the court to weigh the same evidence against the co-conspirators.8

    1. Bonds v. Landers, 566 P.2d 513, 516 (Or. 1977) (citing 15A C.J.S. 599 Conspiracy, § 1(2) (1977)). 

    2. Osborne v. Fadden, 225 Or. App. 431, 201 P.3d 278, 283 (Or. Ct. App. 2009). 

    3. Id

    4. Id

    5. Id. (citing Heitkemper v. Cent. Labor Council, 99 Or. 1, 192 P. 765 (Or. 1921)). 

    6. Id

    7. Id. (citing Bliss v. S. Pac. Co., 212 Or. 634, 642, 321 P.2d 324 (Or. 1958), and Hoffman, 268 F.2d at 295). 

    8. See, e.g., Osborne, 201 P.3d at 282 (the evidence in question was equally applicable to both co-conspirators). 

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