Tennessee Common Law

  1. Invasion of Privacy (General)

    1. Introduction

      Tennessee has adopted the definition of privacy set forth in the Restatement (Second) of Torts (1977).1 Tennessee federal district courts have followed Prosser’s definitional guidelines for classifying the various types of privacy claims, and the elements which provide the definitional guidelines for classifying those claims.2

      Depending on the circumstances, a WMC victim could potentially allege four types of invasion of privacy (appropriation, intrusion, publicity, or false light). Although the cases evaluating such claims presented below are factually distinct from the scenarios more common to a WMC victim, they are still useful as guides to use for claim construction.

    2. Elements of a Claim

      1. False Light

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

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

          2. the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.3

      2. Intrusion

        One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of this privacy, if the intrusion would be highly offensive to a reasonable person.4

      3. Appropriation

        The unauthorized commercial use of a person’s appearance, such that it fairly exploits a person’s property right or his right of publicity.5

      4. Public disclosure of private facts (“Publicity”)

        One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy if the matter publicized is of a kind that (1) would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public.6

    3. Cases

      1. Langford v. Vanderbilt Univ., 287 S.W.2d 32 (Tenn. 1956)

        • Procedural Posture: Consideration of whether a plaintiff waives a right to privacy by becoming a plaintiff in another matter and filing as a public record, the statements and the photograph that he or she later complains is an invasion of his or her privacy.

        • Law: Libel; invasion of privacy (publicity).

        • Facts: Plaintiffs, the Langford family, sued Vanderbilt University for libel based on photographs and an article published in a Vanderbilt newspaper. The Vanderbilt Hustler then published an article informing readers that the Langfords had sued Vanderbilt and others for (1) libel and (2) invasion of privacy based on the described picture page and legends in the article. The court explained that the merit of the appeal turned on the question of whether the publicity given by the Hustler article under the circumstances stated was an invasion of the Langfords’ respective right of privacy within the meaning of the tort.

        • Outcome: The court affirmed dismissal of the suit based on its analysis of authority from other jurisdictions finding it “unrealistic and illogical to hold that there has been an invasion of this common law right of privacy of an individual by publishing a matter which that individual had already made a matter of public record available to the eyes, ears, and curiosity of all who care to look, listen or read.”7

        • Special Notes: The court considered case law from South Carolina, Kentucky, Ohio, and California reaching the same conclusion under similar fact patterns.

      2. Martin v. Senators, Inc., 418 S.W.2d 660 (Tenn. 1967)

        • Procedural Posture: Plaintiff appealed from trial court order sustaining defendants’ demurrer to her declaration.

        • Law: Invasion of privacy (misappropriation).

        • Facts: Plaintiff alleged an invasion of privacy claim against defendant, her employer, arising from the company’s use of certain photographs. Her declaration averred that she had been employed by defendant as a “hat check girl,” and that she had allowed a photographer acting as an agent for her employer to take certain photographs, copies of which were to be delivered to defendant for use and publication of a bulletin distributed to club members. Subsequently, defendant used one of the photographs as a newspaper advertisement stating: “Hello Sport! Tired of sitting at home looking at Mom all night . .. Live a little . . . let us check your hat as a member of the Senators Club. Membership drive in progress. NO INITIATION FEE. . . .P.S. – Mom – BETTER COME ALONG AND WATCH HIM . . .”8 Plaintiff sued, alleging that defendant owed her a duty to obtain her prior consent to use the photograph in an advertisement. She claimed that because of the picture, “it was generally understood in the community that she had for hire permitted her picture to be taken and used as public advertisement, and that the publication of the newspaper had caused her serious emotional distress.9 She sought $75,000 in damages. By demurrers, the defendants asserted that she had not sought a cause of action because invasion of privacy was not an actionable tort in Tennessee.

        • Outcome: The court affirmed the lower court’s dismissal of the claim because it found that the plaintiff had waived her right to object to the photograph when she had previously consented to the defendant’s use of the photograph “in a public place”: “Since it is clear from the declaration the photographs were taken with plaintiff’s consent for publication in a bulletin published by the Senators Club to be distributed to its members, and since it appears from the face of the declaration that his is a public club in the sense that membership is open to all who will pay the small amount of charge for annual membership, and there is no suggestion that the bulletin was exclusively for the eyes of the members, we think the subsequent use by the Senators Club of one of these photographs in an advertisement which depicted plaintiff as a hat check girl implicitly referring to her as such in the statement, ‘Let us check your hat,’ was not actionable invasion of plaintiff’s privacy. Her prior consent for her photographs to be circulated freely among that segment of the public comprising the membership of the Senators Club, and implicitly to be shown by them to anyone else interested, was a waiver of her right of privacy with respect to these photographs. . . Defendant’s use of one of the pictures after prior consent to a virtually public exhibition could not be characterized as an unreasonable and serious interference with privacy.”10

        • Special Notes: The court also noted that liability would exist only if the conduct was such that plaintiff should have realized that the publication of the advertisement was offensive to persons of ordinary sensibilities, and that it is only where the intrusion was beyond the limits of decency that liability accrued. Because the court found no such facts here, it determined that plaintiff had not alleged an invasion of privacy claim.11

      3. Street v. Nat’l Broad. Co., 512 F. Supp. 398 (E.D. Tenn. 1977)

        • Procedural Posture: On appeal from lower court’s decision of directed verdict for defendant on plaintiff’s claim for invasion of privacy because during the weeks following the lower court’s decision, the Tennessee Supreme Court recognized a right of action for invasion of privacy

        • Law: Invasion of privacy (false light); libel; slander.

        • Facts: The defendant broadcast Judge Horton and the Scottsboro Boys nationally, a television program in which there was a character named “Victoria Price” who was both portrayed and described in the program as “a whore” and “a bum.” The program was based on a public trial in which the Plaintiff was a key witness for the prosecution. Plaintiff claimed that the character in the show portrayed her in a false light, and she sued for damages based on what she claimed were “libelous inaccuracies.”

        • Outcome: The court reversed the lower court’s decision granting a directed verdict for the defendant based on its finding that plaintiff had not put forth sufficient evidence of negligence or defamation. Because the Tennessee Supreme Court subsequently held that it would recognize a claim of invasion of privacy, reversal and remand was necessary, so the trial court could determine whether the plaintiff’s allegations met the requirements of the new claim.

        • Special Notes: Although the court had to revisit on remand whether the plaintiff had alleged an invasion of privacy claim, it had previously determined that she had not offered sufficient evidence to show negligence on the part of defendant.

      4. Dunn v. Moto Photo, Inc., 828 S.W.2d 747 (Tenn. Ct. App. 1991)

        • Procedural Posture: On appeal following trial court’s directed verdict in favor of defendants on plaintiff’s claim for outrageous conduct and invasion of privacy.

        • Law: Invasion of privacy (public disclosure of private facts); outrageous conduct; conversion.

        • Facts: Plaintiff worked as a cocktail waitress for the Stockyard Restaurant. She was seeing a travelling salesman named E. During one of his visits, E took some revealing photographs of plaintiff. She brought the film to defendant Moto Photo to be developed. When she returned for her photos, she was told that the film could not be developed and there had been no charge. She discarded the undeveloped film. Shortly thereafter, M, a third party and a friend of plaintiff, asked a Moto Photo employee if he could see “wild pictures” from the store. The employee showed M a “smut book,” which included E’s photographs of the plaintiff. M asked if he could borrow the pictures, and he showed them to plaintiff and some other women. Though plaintiff requested the photographs, he would not give them to her, and instead, he brought them back to Moto Photo. Plaintiff sued defendants for invasion of privacy. At trial, the facts showed that the plaintiff was a model and that she had often posed for photographs in lingerie and other intimate outfits. The lower court granted a directed verdict for the defendants, holding that there had been no breach of contract or outrageous conduct, and by extension, no invasion of privacy.

        • Outcome: The court reversed the lower court’s decision and found that plaintiff had stated viable claims for outrageous conduct and invasion of privacy based on the conduct alleged that must be tried before a jury. The court explained that because there was evidence from which a jury might reasonably find that the plaintiff had suffered serious emotional injury, the issue of whether outrageous conduct occurred was properly before the jury, and not the judge via directed verdict.12 The court explained that “[t]he evidence shows a gross, inexcusable and outrageous breach of a contract of bailment. The plaintiff delivered and Moto Photo accepted a roll of photographic film for development and printing. Thereby, Moto Photo contracted to develop the film, produce prints therefrom, and deliver the developed film and prints to plaintiff for a consideration to be paid by her. Not negligently, but deliberately and fraudulently, Moto Photo deceived plaintiff by representing that the film could not be developed, when the film had been developed and at least one print had been produced. Moto Photo breached its contract to deliver the resulting print or prints to plaintiff and, instead, fraudulently retained the print for its own base purposes, i.e., displaying it to ‘friends’ who desired to see a ‘wild picture.’ To compound the wrong, Moto Photo ‘loaned’ the print to M for the declared purpose of ‘having some fun’ at the expense of plaintiff. The extreme culpability of the actions of Moto Photo demands judicial condemnation which, according to the above quotations, requires ‘serious injury.’ Even though the facts of the present case might tend to mitigate the seriousness of the injury sustained by this [plaintiff], they cannot mitigate the seriousness of the conduct of the defendants, particularly Moto Photo and its employee, for they had no information as to the circumstances of the customer whom they wronged.”13

        • Special Notes: The court found that the defendant had also wrongfully converted plaintiff’s photographs in violation of the terms of the constructive bailment that is created when an individual entrusts Moto Photo with film for developing.14

      5. Lineberry v. Locke, No. M1999-02169-COA-R3-CV, 2000 WL 1050627 (Tenn. Ct. App. July 31, 2000)

        • Procedural Posture: Plaintiff appealed from trial judge’s directed verdict in favor of the defendant sheriff on plaintiff’s claims of invasion of privacy and outrageous conduct.

          Law: Invasion of privacy (public disclosure of private facts).

        • Facts: Plaintiff’s private photographs and videotapes were seized in the execution of a lawful search warrant. The warrant commanded the officers to search for and seize an affixed two-way mirror located on the third floor of the plaintiff’s office building, along with cameras, lenses, videotapes, recording equipment, and any records cataloging taped events. During the search, the officers found revealing photographs of the plaintiff’s girlfriend, and videotapes showing the plaintiff engaged in sexual acts with various women. To identify what was on the videos found at the plaintiff’s home, the officers viewed them in the presence of the plaintiff’s son and others. Following the search, the district attorney general instructed one of the officers to try to identify the women in the videos, and to do so, the defendant showed the tapes to plaintiff’s girlfriend, and one other person who appeared in scenes taped through the two-way mirror. Shortly thereafter, a local newspaper carried a story about the events surrounding the search, and quoted an anonymous source describing the materials seized as “sexually explicit photos and tapes depicting a wide array of carnal activity.”15 Plaintiff then sued to recover damages from the defendants for invasion of privacy and outrageous conduct, alleging that the defendant maliciously revealed the evidence to the public.

        • Outcome: The court affirmed the lower court’s directed verdict in favor of defendants. As to the invasion of privacy claim, the court held that the defendants’ “publication” of the materials to a select few individuals at the scene, and possibly two other people was not a “public disclosure” under the law.16 Moreover, the court determined that the facts alleged did not support a claim for outrageous conduct. The court stressed that where such a claim is made, “[l]iability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”17

        • Special Notes: The court also noted that the officers had to view the material they found to properly execute the search warrant, and they only showed the tapes to women involved in the activity—they did not reveal them to the public. Moreover, there was no evidence that the defendants had leaked the story to the newspaper and the newspaper would not disclose its anonymous source.

      6. Roberts v. Essex Microtel Assoc., 46 S.W.3d 205 (Tenn. Ct. App. 2000)

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

        • Law: Invasion of privacy (intrusion); false imprisonment.

        • Facts: Plaintiff registered as a guest at a motel. Defendant Ms. A was the desk clerk, and the only employee on the premises at the time. She asked plaintiff for his driver’s license, which he provided willingly. A photocopied the license, which was hotel policy, so the customer could be located in the event he caused loss or damage to the room. A testified that when she photocopied his license, plaintiff became disgruntled and allegedly commented that he supposed Allen had copied his license so she could “call the authorities” and tell them of his whereabouts. Plaintiff testified that he was joking, and that he was not accustomed to having his license photocopied upon registration. However, A thought that plaintiff was being rude and was exhibiting strange behavior. A testified that because she was concerned for her safety, she telephoned the police department and disclosed plaintiff’s personal information. When the police department received the clerk’s call, the dispatcher noted that a person with the same name and birthday had criminal charges in Florida for narcotics trafficking. The police department dispatched two officers to the hotel to investigate whether the plaintiff was the suspect wanted in Florida. The plaintiff voluntarily admitted the officers to his room, and cooperatively answered their questions about whether he had ever lived in Florida. When they confirmed that his physical description matched that of the suspect, and learned that he once lived in Florida, they placed him in handcuffs and took him to the police headquarters in a cruiser. After two hours, the authorities confirmed that plaintiff’s fingerprint did not match that of the Florida suspect, and they transported him back to his hotel where he told A that he planned to sue her and the hotel for A’s conduct. The trial court granted defendants’ motion for summary judgment because the plaintiff had willingly provided his driver’s license to A at her request.

        • Outcome: The court affirmed the trial court’s ruling and found that although invasion of privacy was a cognizable claim in Tennessee, where plaintiff “willingly” provided his personal information to the hotel clerk, he could not now claim that the she and defendants had “‘invaded a private seclusion that the [P]laintiff has thrown about his person or affairs.’”18

        • Special Notes: The concurrence found that the defendants had invaded plaintiff’s privacy based on its determination that her action of giving plaintiff’s information to the police was far outside the context for which he had provided her with his license: “[T]he desk clerk communicated the plaintiff’s date of birth to the police, a communication that ultimately and inexorably led to a series of events that culminated in the plaintiff being taken into custody. The clerk got this information from the plaintiff’s driver’s license, a document that was handed to her for a limited purpose. He gave his license to the clerk as identification to her and only in connection with his stay at the motel. By doing so, he did not authorize her, expressly or by implication, to communicate any information on that license, including his date of birth, to anyone outside the management of the motel. When she did so, I believe she ran afoul of [the law].”19

      7. West v. Media Gen. Convergence, Inc., 53 S.W.3d 640 (Tenn. 2001)

        • Procedural Posture: Certified question from the E.D. Tennessee: “Do courts of Tennessee recognize the tort of false light invasion of privacy, and if so, what are the parameters and elements of that tort?”20

        • Law: Invasion of privacy (false light).

        • Facts: The suit arose from a multi-part investigative news report aired about the relationship between the plaintiffs and the Hamilton County General Sessions private probation services business. Plaintiffs claim that the TV report defamed them by broadcasting false statements that their business was illegal, and plaintiff West alleged that the defendant invaded her privacy by implying that she had an improper sexual relationship with one of the General Sessions judges.21

        • Outcome: Reviewing closely the majority and minority views, the Court adopted the tort of false light invasion of privacy. Although the court noted that it was similar to defamation, it provided a viable and necessary method of alternative relief. A plaintiff claiming false light is entitled to “recover damages for: (a) the harm to his interest in privacy resulting from the invasion; and (b) his mental distress proved to have been suffered from such an invasion; and (c) special damage of which the invasion is a legal cause.”22

        • Special Notes: The court specifically addressed and questioned the North Carolina district court’s rejection of the false light claim in favor of defamation.

      8. Lewis v. Newschannel 5 Network L.P. (“Lewis II”), 238 S.W.3d 270 (Tenn. Ct. App. 2007)

        • Procedural Posture: Plaintiff appealed from the lower court’s decision granting defendants summary judgment on his claims of defamation and false light invasion of privacy.

        • Law: Defamation; invasion of privacy (false light).

        • Facts: The defendant news channel network broadcasted a news story about the discipline of a high ranking official of the Metropolitan Nashville Police Department, who interceded with a subordinate purportedly to prevent his brother-in-law’s arrest. Following the broadcast, both the brother-in-law and the police official filed separate lawsuits against the station and three of its employees in the circuit court. The trial court granted summary judgment dismissing the complaints filed by the police official and his brother-in-law because: (1) it determined that the defendant station and its employees were shielded by the fair report privilege, and that (2) the brother-in-law was not a public figure for the purpose of his libel claim.23

        • Outcome: The court affirmed the grant of summary judgment on both claims. First, the court found that the fair report privilege applied to the entire story because it was one of the Chief of Police’s official action.24 The court also dismissed the libel claims. The court dismissed the plaintiff’s false light claim but held that Tennessee does recognize such claims; however, the court’s decision was narrowly tailored to public figures only.25 Considering all of the facts and testimony in evidence, the court noted that it would diverge from the Restatement (Second) of Tort’s position on distinguishing private from public figures, stating: “Consciously departing from the Restatement which applies the actual malice standard to all false light claims, the Tennessee.”26

        • Special Notes: The court noted that the record contained no evidence that the defendants knew that the information about plaintiff in the broadcast was “false.

      9. Harris v. Horton, 341 S.W.3d 264 (Tenn. Ct. App. 2010)

        • Procedural Posture: Plaintiffs appealed from the lower court’s decision granting summary judgment to defendants on claims for invasion of privacy, infliction of emotional distress, and interfering with human remains.

        • Law: Invasion of privacy (intrusion on seclusion and publicity); IIED; NIED.

        • Facts: Plaintiffs’ son J was involved in a fatal car accident, and as was the standard procedure, authorities took photographs of the accident scene, including photos of J’s lifeless body and photos of his body in a body bag. The photographs wound up in the possession of defendant H, a local EMT who had responded to the accident. About three months later, H was asked to appear at a driver’s education class in the local high school to help the instructor educate the students about the dangers of reckless driving. To assist with the presentation, defendant H brought two albums of graphic photos. Although the parties disagreed as to the facts, the plaintiffs allege that J’s photo was among those used for driver’s education without their consent. The trial court dismissed the claim for mishandling human remains because the defendant’s use of the photos did not constitute “disturbing” or “mishandling” human remains as the statute requires.27 The trial court also dismissed plaintiffs’ invasion of privacy claims because the display of the photos, which were taken in a public place, was not an “intrusion” into plaintiffs’ seclusion, and because the defendant had become an involuntary public figure, but could not meet the heightened standard necessary to assert such a claim.28 Finally, the court also found that because H was not aware that the photographs of J were in the album when he brought it to the driver’s education class, plaintiff could not establish a claim for IIED or NIED. Plaintiffs appealed.

        • Outcome: The court affirmed the lower court’s ruling in full. The court determined that because there was no evidence that H knew the photo albums contained photos of J’s body, summary judgment for defendants was appropriate on all counts. The court based that determination in part on its agreement with the trial court’s position that J had become “an involuntary public figure” when he was involved in a fatal car accident.

        • Special Notes: The court noted that “Tennessee recognizes a claim for reckless infliction of emotional distress, distinct from intentional or negligent infliction of emotional distress,” and occur where a defendant was reckless and his or her conduct was outrageous, leading to allegations that he caused the victim serious mental injury.29

    4. Practice Pointers

      • The Tennessee Supreme Court specifically noted that in dealing with false light claims, “the hypersensitive plaintiff cannot recover. . . where the publicized matter attributed to the plaintiff was, even if intentionally falsified, not a seriously offensive misstatement.”30

      • As with defamation, for false light claims where the plaintiff is a public figure, the plaintiff must show “malice” on the part of the defendant with “evidence of convincing clarity.”31

      • A key issue in considering whether a public disclosure of private facts has occurred is whether the facts were actually made public. If they were alleged to only a select and small group of individuals, that does not suffice.32

    1. See West v. Media Gen. Convergence, Inc., 53 S.W.3d 640, 641 (Tenn. 2001) (adopting false light invasion of privacy claim and noting Tennessee’s adherence to the Restatement’s definition of invasion of privacy). 

    2. Int’l Union v. Garner, 601 F. Supp. 187, 189 (M.D. Tenn. 1985). 

    3. Media Gen. Convergence, Inc., 53 S.W.3d at 644. 

    4. Int’l Union, 601 F. Supp. at 190-91 (citing Restatement (Second) of Torts § 652D). 

    5. Id. at 190 (citing Restatement (Second) of Torts § 652D). 

    6. Id.(citing Restatement (Second) of Torts § 652D); see also Tidman v. Salvation Army, No. 01-A-01-9708-CV00380, 1998 WL 391765, at *2 (Tenn. Ct. App. July 15, 1998) (noting that in order to satisfy the requirements of public disclosure of private facts, the private information must be made public, and disclosure to a select few individuals is insufficient). 

    7. Langford v. Vanderbilt Univ., 287 S.W.2d 32, 39 (Tenn. 1956). 

    8. Martin v. Senators, Inc., 418 S.W.3d 660, 662 (Tenn. 1967). 

    9. Id

    10. Id. at 664. 

    11. Id

    12. Dunn v. Moto Photo, Inc., 828 S.W.2d 747, 754-55 (Tenn. Ct. App. 1991). 

    13. Id. at 754. 

    14. Id. (noting that the evidence showed “a gross, inexcusable and outrageous breach of a contract of bailment”). 

    15. Lineberry v. Locke, No. M1999-02169-COA-R3-CV, 2000 WL 1050627, at *2 (Tenn. Ct. App. July 31, 2000). 

    16. Id

    17. Id. at *3. 

    18. Roberts v. Essex Microtel Assoc., 46 S.W.3d 205, 213 (Tenn. Ct. App. 2000). 

    19. Id. at 214 (Susano, J. concurring). 

    20. West, 53 S.W.3d. at 641 (dismissing view that recognition of the false light privacy tort will lead to unnecessary litigation). 

    21. Id. at 642. 

    22. Id. at 648. 

    23. Lewis v. Newschannel 5 Network, L.P., 238 S.W.3d 270, 276 (Tenn. Ct. App. 2007). 

    24. Id. at 280. 

    25. Id. at 303. 

    26. Id

    27. Tenn. Code Ann. § 39-17-312 makes it a criminal offense to “[p]hysically mistreat [ ] a corpse in a manner offensive to the sensibilities of an ordinary person.” 

    28. Harris v. Horton, 341 S.W.3d 264, 274 (Tenn. Ct. App. 2010) (also noting that “the fact to which publicity was given, namely, the appearance of J’s body as depicted in the accident-scene photographs, is related to the event that gave rise to his status as an involuntary public figure”). 

    29. Id. at 274. 

    30. West, 53 S.W.3d at 646 (dismissing view that recognition of the false light privacy tort will lead to unnecessary litigation).  

    31. McCluen v. Roane Cty. Times, Inc., 936 S.W.2d 936, 939 (Tenn. Ct. App. 1996). 

    32. Lineberry, 2000 WL 1050627, at *2 (“the limited exposure of the content of the materials seized in the search is not sufficient to make out a cause of action for the invasion of privacy”). 

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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.

    2. Elements

      1. The defendant published a statement;

      2. The defendant’s publication occurred with knowledge that the statement was false and defaming to the plaintiff; or

      3. with reckless disregard of the truth of the statement or with negligence in failing to ascertain the truth of the statement.1

    3. Cases

      1. Lewis v. Newschannel 5 Network, L.P. (“Lewis I”), No. 00C-2704, 01C-1873, 2005 WL 3237681 (Tenn. Cir. Ct. Jan. 10, 2005)2

        • Procedural Posture: Defendants moved for summary judgment on plaintiffs’ false light invasion of privacy and defamation claims.

        • Law: Defamation; invasion of privacy (false light).

        • Facts: Defendant Newschannel 5 Network broadcast 3 separate news stories, each involving controversies and investigations with the Metropolitan Nashville-Davidson County Police Department that involved plaintiff Major D, a high-ranking official in that department. The story at issue stated that there was an internal and criminal investigation of D relating to an incident in which plaintiff, D’s brother-in-law, L, was stopped for suspected gambling with a shot gun in his car. The story alleged that D improperly intervened to prevent the arrest, and was later disciplined. The plaintiffs contend that the facts in the story were inaccurate, and that the story misleadingly implies illegal conduct on the part of both plaintiffs making it defamatory.

        • Outcome: The court granted summary judgment for the defendants. The plaintiff asserted that D, a public figure, failed to put forth sufficient facts to show actual malice. And although the court determined that plaintiff L was not a public figure because he was unknown to the public prior to the incident, he failed to put forth sufficient facts to show negligence. The court explained: “The Court is of the opinion that the reporter used reasonable care in investigating and publishing the August 9, 2000 story, and L[redacted] cannot prevail on his defamation claims, even applying a negligence standard. No reasonable juror could find negligence given the investigation undertaken by the reporter and the action taken by the Police Department, all of which occurred prior to the story being reported. While the plaintiff challenges the veracity of the underlying information, he can do little to refute the fact that the information on the broadcast was an accurate reflection of what the police had reported.”3 The court also determined that the “fair report privilege” applies to protect the news media for publishing reports of arrests by the police: “The gist or ‘guts’ of this story is the report by the police officers on the scene, the radio transmissions, and the statements of the police chief. The Court believes that those statements have been accurately reported, and the story is protected by the privilege.”4 The court also dismissed plaintiffs’ false light claims because “the First Amendment . . . requires that a plaintiff in a false light invasion of privacy lawsuit prove the defendant acted with ‘actual malice’ in matters of public concern. . . The L arrest and D intervention and subsequent action by the police chief made the incident one of ‘public concern,’” but plaintiffs could not meet their burden of showing defendants acted with actual malice.5

        • Special Notes: A plaintiff can bring both a defamation and a false light of invasion of privacy claim, but the standards are similarly high for public figures, who must show “actual malice” on the part of the defendant.

      2. Hibdon v. Grabowski, 195 S.W.3d 48 (Tenn. Ct. App. 2005)

        • Procedural Posture: On appeal from trial court decision granting summary judgment to defendants based on determination that plaintiff was a public figure for purposes of libel, that plaintiff could not prove actual malice, and that plaintiff failed to show actual damage

        • Law: Defamation and libel; invasion of privacy.

        • Facts: Plaintiff H was a television repairman who began a business customizing jet skis to increase their speed. After SPLASH Magazine published two positive articles about H’s jet skis, several individuals began publishing remarks about H and his business on rec.sport.jetski, an online forum. Many of the remarks criticized H’s modifications, and his skill as a jet ski mechanic, and made negative personal comments about H. Also, defendant G, who operated a competing business, published statements about H on his business website under a category called “Chop Shop.” H sued defendants, G and others, alleging that the statements they published online were defamatory and negatively affected his ski business. H claimed that the comments caused him economic losses and emotional distress. He also claimed that defendant G offered low or no cost jet ski modification work to certain defendants in exchange for their publication of comments on rec.sport.jetski, which favored G and criticized H. H later amended his complaint to seek damages for libels that were published after the Complaint’s filing as well as damages for invasion of privacy. The trial court granted defendants summary judgment based on its determination that H was a “limited purpose public figure,” and that defendants had shown that he would be unable to prove “actual malice” by clear and convincing evidence.

        • Outcome: The court affirmed in part, reversed in part, and remanded. First, the court affirmed the lower court’s determination that the “actual malice” requirement applied. The court explained that the parties’ dispute was a “public controversy” “due to the international reach of the Internet news group rec.sport.jetski, the national circulation of SPLASH Magazine, as well as the significance of the claims being asserted by H. The dispute as to the accuracy of H’s claimed successes with modifying jet skis to achieve record-breaking speeds received public attention because its ramifications would be felt by persons who are not direct participants, those persons being individuals in the jet ski modification business, as well as recreational jet ski enthusiasts and purchasers of jet skis.”6 Moreover, because H played an “extensive” role in the controversy, the court found that the trial court had properly characterized him as a “public figure.” However, the court reversed the lower court’s decision granting summary judgment as to the defendant appellees. The court reviewed the facts alleged as to each defendant and found that there was material evidence for H to meet his burden of showing with clear and convincing evidence that the statements were made with actual malice, and that he had put forth enough evidence to survive damages as to actual damages.

        • Special Notes: The court’s determination that H was a “public figure” because the parties’ “controversy” was publicized online possibly raised the bar of proving libel and/or defamation in Tennessee state courts.

    4. Practice Pointers

      • The Tennessee Supreme Court has held that damages for libel and defamation are restricted to compensation for “actual injury,” unless “actual malice” is shown, in which case a court may also award punitive damages. Regardless, compensatory damages must be proved, and cannot be presumed.7

      • The Tennessee Supreme Court specifically noted that it was eliminating the traditional “per se/per quod” distinction, such that a plaintiff alleging libel or defamation must plead and prove injury from the alleged wrongful actions of the defendant regardless of whether the allegedly defamatory words have an obviously defamatory meaning.8

      • “[T]he basis for an action for defamation, whether it be slander or libel, is that the defamation has resulted in an injury to the person’s character and reputation.”9

      • Liability for defamation can extend to everyone who took part in publishing the allegedly defamatory material.10

      • Tennessee courts have considered a plaintiff to be a “public figure” who must meet the higher standard of showing “actual malice” in situations where the controversy at issue is widely publicized online.11 Accordingly, a WMC victim should carefully consider the context at issue in his or her case to evaluate whether it can properly be subject to the lower standard applicable to a private figure or whether it was a “public controversy” that effectively transformed that person into a “public figure” in the eyes of the law.

    1. Sullivan v. Baptist Mem. Hosp., 995 S.W.2d 569, 571 (Tenn. 1999). 

    2. Aff’d Lewis v. Newschannel 5 Network, L.P. (“Lewis II”), 238 S.W.3d 270 (Tenn. Ct. App. 2007). 

    3. Lewis v. Newschannel 5 Network, L.P., No. 00C-2704, 01C-1873, 2005 WL 3237681, at *8 (Tenn. Cir. Ct. Jan. 10, 2005). 

    4. Id. at *8-9. 

    5. Id. at *9. 

    6. Hibdon v. Grabowski, 195 S.W.3d 48, 60 (Tenn. Ct. App. 2005). 

    7. Memphis Publ’g Co. v. Nichols, 569 S.W.2d 412, 421 (Tenn. 1978) (holding that after the Supreme Court’s decision in Gertz, plaintiffs claiming defamation are restricted to compensatory damages except in special cases). 

    8. Id. at 419. 

    9. Quality Auto Parts Co., Inc. v. Bluff City Buck Co., Inc., 876 S.W.2d 818, 820 (Tenn. 1994). 

    10. Knoxville Publ’g Co. v. Taylor, 215 S.W.2d 27, 30 (Tenn. Ct. App. 1948). 

    11. Hibdon, 195 S.W.3d at 63-64. 

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  3. Trespass to Chattels

    1. Introduction

      In a situation where a defendant interferes with a WMC victim’s storage 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

      Intentionally dispossessing another of another’s chattel, or using or intermeddling with that chattel in the possession of another.”1

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      Someone who commits a trespass to chattel may be liable if: (1) the chattel is impaired in its condition, quality or value; (b) the possessor is deprived of the use of the chattel for a substantial time; or (c) the trespass causes bodily harm to the possessor or to some person or thing in which he has a legally protected interest.2

    1. Holt v. Macy’s Retail Holdings, Inc., 719 F. Supp. 2d 903, 914 (W.D. Tenn. 2010) (noting that Tennessee case law on a trespass-to-chattels claim is “virtually nonexistent”). 

    2. Id. (citing Restatement (Second) of Torts, §§ 218-220 (1965)). 

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  4. Conversion

    1. Introduction

      A WMC victim may try to bring a claim of conversion 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

      1. The appropriation of another’s property to one’s own use and benefit; and

      2. By the intentional exercise of dominion over it; and

      3. In defiance of the true owner’s rights.

    3. Cases

      Research is ongoing.

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  5. Breach of Contract

    1. Introduction

      A WMC victim could bring a breach of contract claim where the parties have an implicit or explicit contract involving consent to use an image of the plaintiff.

    2. Elements

      1. The existence of an enforceable contract;

      2. Nonperformance amounting to a breach of the contract; and

      3. Damages caused by the breach of the contract.1

    3. Cases

      Research is ongoing.

    1. Custom Built Homes v. G.S. Hinsen Co., Inc., No. 01A01-9511-CV-00513, 1998 WL 960287 (Tenn. Ct. App. Feb. 6, 1998) (citing Life Care Ctrs. of Am., Inc. v. Charles Town Assoc., Ltd. P’ship, LPIMC, Inc., 79 F.3d 496, 514 (6th Cir. 1996)). 

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  6. Promissory Estoppel

    1. Introduction

      A WMC victim could bring a 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). In the advertising context, the victim would consider whether there was a signed release in place and whether the scope of that release would bar the victim’s claims.

    2. Elements

      1. Promisor makes a promise that is reasonably expected to induce action or forbearance on the part of the promisee or a third person;

      2. The promise does induce such action or forbearance;

      3. The promisee or third party is damaged by such reliance.1

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      • The limits of promissory estoppel are: (1) the detriment suffered in reliance must be substantial in an economic sense; (2) the substantial loss to the promise in acting in reliance must have been foreseeable by the promisor; (3) the promise must have acted reasonably in justifiable reliance on the promise as made.2

      • “Tennessee does not liberally apply the doctrine of promissory estoppel. To the contrary, it limits application of the doctrine to exceptional cases.”  

    1. Calabro v. Calabro, 15 S.W.3d 873, 878 (Tenn. Ct. App. 1999) (citing Amacher v. Brown-Forman Corp., 826 S.W.2d 480, 482 (Tenn. Ct. App. 1991) (quoting Restatement (Second) of Contracts § 90)). 

    2. Id. at 879. 

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

    1. Introduction1

      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

      1. The conduct of the defendants has been so outrageous in character, and so extreme in degree, as to be beyond the pale of decency, and to be regarded as atrocious and utterly intolerable in a civilized society; and

      2. The conduct results in serious mental injury to the victim.2

    3. Cases

      1. Dunn v. Moto Photo, Inc., 828 S.W.2d 747 (Tenn. Ct. App. 1991)

        • Procedural Posture: On appeal following trial court’s directed verdict in favor of defendants on plaintiff’s claim for outrageous conduct and invasion of privacy.

        • Law: Invasion of privacy (public disclosure of private facts); outrageous conduct; conversion.

        • Facts: Plaintiff worked as a cocktail waitress for the Stockyard Restaurant. She was seeing a travelling salesman named E. During one of his visits, E took some revealing photographs of plaintiff. She brought the film to defendant Moto Photo to be developed. When she returned for her photos, she was told that the film could not be developed and there had been no charge. She discarded the undeveloped film. Shortly thereafter, M, a third party and a friend of plaintiff, asked a Moto Photo employee if he could see “wild pictures” from the store. The employee showed M a “smut book,” which included Es photographs of the plaintiff. M asked if he could borrow the pictures, and he showed them to plaintiff and some other women. Though plaintiff requested the photographs, he would not give them to her, and instead, he brought them back to Moto Photo. Plaintiff sued defendants for invasion of privacy. At trial, the facts showed that the plaintiff was a model and that she had often posed for photographs in lingerie and other intimate outfits. The lower court granted a directed verdict for the defendants, holding that there had been no breach of contract or outrageous conduct, and by extension, no invasion of privacy.

        • Outcome: The court reversed the lower court’s decision and found that plaintiff had stated viable claims for outrageous conduct and invasion of privacy based on the conduct alleged that must be tried before a jury. The court explained that because there was evidence from which a jury might reasonably find that the plaintiff had suffered serious emotional injury, the issue of whether outrageous conduct occurred was properly before the jury, and not the judge via directed verdict.3 The court explained that “[t]he evidence shows a gross, inexcusable and outrageous breach of a contract of bailment. The plaintiff delivered and Moto Photo accepted a roll of photographic film for development and printing. Thereby, Moto Photo contracted to develop the film, produce prints therefrom, and deliver the developed film and prints to plaintiff for a consideration to be paid by her. Not negligently, but deliberately and fraudulently, Moto Photo deceived plaintiff by representing that the film could not be developed, when the film had been developed and at least one print had been produced. Moto Photo breached its contract to deliver the resulting print or prints to plaintiff and, instead, fraudulently retained the print for its own base purposes, i.e., displaying it to ‘friends’ who desired to see a ‘wild picture.’ To compound the wrong, Moto Photo ‘loaned’ the print to M for the declared purpose of ‘having some fun’ at the expense of plaintiff. The extreme culpability of the actions of Moto Photo demands judicial condemnation which, according to the above quotations, requires ‘serious injury.’ Even though the facts of the present case might tend to mitigate the seriousness of the injury sustained by this [plaintiff], they cannot mitigate the seriousness of the conduct of the defendants, particularly Moto Photo and its employee, for they had no information as to the circumstances of the customer whom they wronged.”4

        • Special Notes: The court found that the defendant had also wrongfully converted plaintiff’s photographs in violation of the terms of the constructive bailment that is created when an individual entrusts Moto Photo with film for developing.5

      2. Miller v. Willbanks, M.D., 8 S.W.3d 607 (Tenn. 1999)

        • Procedural Posture: Plaintiffs sought discretionary review of the affirmance of the lower court’s decision granting defendants’ motion for summary judgment due to parents’ failure to have available expert proof to corroborate their claim of serious mental injury.

        • Law: IIED.

        • Facts: Plaintiffs, husband and wife, had a child at the defendant hospital. The child was ill after she was born, and the doctor believed that she was a “drug baby” who was in distress based on her mother’s drug use while she had been pregnant.6 Even after drug tests of the mother and baby came back negative, the doctor insisted that he believed drugs were causing the baby’s illness, and he reported his suspicions to the Grainger County Health Department, after which, a social worker inspected their home and baby to assess their parenting skills.7

        • Outcome: The Tennessee Supreme Court reversed and remanded based on its determination that a plaintiff need not put forth expert medical or scientific proof of a serious mental injury to establish an IIED claim. The court discussed the history of IIED in Tennessee, and noted that the majority of other courts to have considered the issue concluded that “expert proof is generally not necessary to establish the existence of a serious mental injury,” because “[t]he flagrant and outrageous nature of the defendant’s conduct, according to these courts, adds weight to a plaintiff’s claim and affords more assurance that the claim is serious.”8 The court also noted that expert testimony is not essential “because other reliable forms of evidence, including physical manifestations of distress and subjective testimony, are available,” and “a jury is generally capable of determining whether a claimant has sustained a serious mental injury as a proximate result of the intentional conduct of another person.”9

        • Special Notes: The court based its assessment on the fact that a trier of fact could normally understand and evaluate whether a “person is plagued by a serious mental injury caused by the intentional infliction of emotional distress, thus obviating the necessity of expert proof.”10

      3. Steinbrunner v. Turner Funeral Home, Inc., No. E2001-00014-COA-R3-CV, 2002 WL 14088 (Tenn. Ct. App. July 15, 2002)

        • Procedural Posture: Plaintiff appealed from lower court’s order dismissing on summary judgment her claim for damages caused by emotional distress she allegedly suffered when the medical examiner showed her photographs of her husband.

        • Law: Outrage; NIED.

        • Facts: Plaintiff’s husband died suddenly, and the medical examiner found the cause of death to relate to cardiovascular problems. At plaintiff’s request (she was not aware her husband had any heart problems), her husband’s body was disinterred by the Funeral Home and taken back to the medical examiner, who performed a complete autopsy. 5 years later, plaintiff again began to question her husband’s cause of death, and she requested a meeting with the medical examiner. During that meeting, the examiner showed her 11 photos of her husband’s body and warned her that the pictures would be graphic. She claims she was traumatized due to the examiner’s failure to adequately warn her about the substance of the photos. The court granted summary judgment to the defendants because it found no evidence of material fact and felt it was entitled to a judgment as a meet law.”11

        • Outcome: The court affirmed on all counts. The court agreed that the conduct of the examiner was not outrageous because it was not “beyond the pale,” and did not result in mental injury. And importantly, plaintiff admitted that the examiner “warned her about” the photos before showing S the photos, and she consented, so cannot now claim that conduct was tortious. She also never told him to stop showing her the pictures. The court also dismissed plaintiff’s summary judgment claim holding that the Funeral Home owed plaintiff a duty of care to conform to a “reasonable” standard of care based on the parties’ relationship: “We find that the Funeral Home satisfied a reasonable person standard of care under all the circumstances present in this case. The Funeral Home maintained paperwork regarding the decedent, and reburied him in proper clothing. Moreover, because the Funeral Home did not have a duty to attach identification to the decedent’s body in 1992, the Funeral Home was not negligent in failing to attach such identification. . . . We find that S[redacted]’s claims of negligence are without merit.”12

        • Special Notes: The court also found that given that she could not even establish an ordinary negligence claim, the plaintiff also failed to establish a cause of action for “gross negligence,” which it describes as “a negligent act done with utter unconcern for the safety of others, or one done with such a reckless disregard for the rights of others that a conscious indifference for consequences is implied in law.”13

      4. C[redacted] v. Booth, No. E2007-02537-COA-R3-CV, 2008 WL 4998408 (Tenn. Ct. App. June 15, 2009)

        • Procedural Posture: Plaintiff appealed from the lower court order granting defendants summary judgment on plaintiff’s claims for invasion of privacy and outrageous conduct.

        • Law: Outrage; invasion of privacy (publicity).

        • Facts: Plaintiff C is an attorney representing a client, CL, in a divorce case. They engaged in a sexual relationship, and on occasion while in the plaintiff’s office, the plaintiff would masturbate in front of her, following which, he would credit her bill. She complained to the local sheriff’s department who gave her recording equipment. She videotaped the plaintiff masturbating as was his custom. The investigator, B, viewed the video, and shared it with her officemate, Defendant W, who, in turn, took the video to offices of the two other defendants for viewing. Plaintiff sued for damages for invasion of privacy and outrage. The disclosure alleged by plaintiff consisted of a single showing of the videotape: “There was no communicating to the public at large, and the limited exposure of one showing to a small group was not sufficient to make a cause of action for invasion of privacy.”14 Moreover, following the alleged publication, plaintiff sent a fax to several law enforcement agencies, attorneys, and news media regarding the allegations, and the recordings were allegedly contained in publicly available court records. The lower court also found that the defendant’s motion for summary judgment as to the outrageous conduct claim.

        • Outcome: The court affirmed the lower court’s determination that summary was judgment appropriate on the invasion of privacy claims. The court agreed with the lower court’s ruling that the showing of the video did not qualify as a “public disclosure” under the law. The court further affirmed as to B, and W. However, the court explained that because the other two defendants were only tangentially involved and were “shown” the video rather than actively seeing it, it did not count. However, the court vacated the grant of summary judgment on the outrageous conduct claim as to B and W and remanded for further proceedings. The court affirmed the grant of summary judgment to the last two defendants.

        • Special Notes: NA

      5. Shamblin v. Martinez, No. M2010-00974-COA-R3-CV, 2011 WL 1420896 (Tenn. Ct. App. Apr. 13, 2011)

        • Procedural Posture: Plaintiffs appeal from the lower court ruling dismissing their defamation and false light claims on summary judgment.

        • Law: IIED; defamation; invasion of privacy (false light).

        • Facts: Plaintiffs, G and T, were leaders of the Remnant Fellowship Church. Defendant M published an article on the website “celebgalz.com,” alleging that plaintiffs had “cop[ped] a deal with prosecutors” to avoid getting involved in the trial of two church members—J and S Smith—who were tried and convicted of murdering one of their children. The Smiths asserted that their child died when they were following the child-rearing directions of G and T. The plaintiffs stipulated that they were public figures.15 The court dismissed on summary judgment, based on its determination that the statement addressed a matter of public concern, and that the statements were either M’s opinions, were true, or were reasonably believed to be true as written.

        • Outcome: The court affirmed the lower court’s determination dismissing summary judgment. The court explained that “[t]he affidavit and exhibits filed in support of the motion for summary judgment negated the common element of both defamation and false light invasion of privacy—the requirement of actual malice.”16 The court explained that regardless of whether the issues were ones of public controversy, M’s affidavit in support of the motion simply negated “actual malice.” Accordingly, the court explained that the record “d[id] not contain ‘clear and convincing evidence,’” and the defendant was entitled to summary judgment.

        • Special Notes: NA

      6. White v. Target Corp., W.2010-02372-COA-R3-CV, 2012 WL 6599814 (Tenn. Ct. App. Dec. 18, 2012)

        • Procedural Posture: Plaintiff W appealed from lower court order granting Target summary judgment on all of her claims for relief.

        • Law: IIED; invasion of privacy; misappropriation of image.

        • Facts: While she was changing in a fitting room at Target and in a state of undress, W noticed in the reflection of her dressing room mirror, a globe on the store ceiling that appeared to contain a surveillance camera. Store employees told her that the globe contained a camera. But after the employee located the store manager, he told W that there was no actual camera in the dome. According to the manager, the dome was a “dummy camera” to deter theft, but he never allowed W or her husband to see and inspect the dome in question. W was dissatisfied with Target’s response, and she and her husband asked for a letter of apology and assurance that Target had made no photographs or videos of W preparing to try on ladies’ clothing in the fitting room; they received no such letter. Accordingly, they filed suit against Target claiming several violations of state and federal laws, and noting that they had suffered damages from Target’s actions in the form of emotional distress and loss of consortium. They sought $4 million in compensatory damages, $18 million in punitives, $100 in statutory penalties, and attorney fees and costs. The parties carried out discovery, but the lower court dismissed the claims on summary judgment because Target had not intended to injure plaintiff. Only W appealed.

        • Outcome: The court reversed the decision granting summary judgment to Target and remanded for further proceedings. The court found that the lower court had applied the incorrect standard on summary judgment, improperly shifting the burden of proof to the plaintiff on the intentional infliction of emotional distress claim. Moreover, the court explained that the evidence presented only showed that the plaintiff had not yet found evidence of a camera, but had not eliminated whether there could be such a camera.

        • Special Notes: The court explained the Tennessee Supreme Court’s current standard on summary judgment, set forth in Hannan v. Alltel Publ’g Co.17 There the court reaffirmed the basic principles regarding the standard applicable to motions for summary judgment, and explained that “[i]t is insufficient for the moving party to ‘merely point to omissions in the nonmoving party’s proof and allege that the nonmoving party cannot prove the element at trial. . . Similarly, the presentation of evidence that raises doubts about the nonmoving party’s ability to prove his or her claim is also insufficient.”18

      7. Phelps v. Newman, No. E2012-01065-COA-R3-CV, 2013 WL 28393 (Tenn. Ct. App. Jan. 3, 2013)

        • Procedural Posture: On appeal from trial court’s dismissal of plaintiff’s claims, and denial of his motion to alter or amend.

        • Law: IIED; invasion of privacy; civil conspiracy.

        • Facts: Plaintiff had an intimate relationship with a female coworker. He alleged that after they broke up, she and three of her friends (also coworkers), set out to get plaintiff fired. He claimed that they developed a plan to get him terminated by filing false reports and otherwise harassing him, including by photographing his ex-girlfriend grabbing his testicles, and posting the photograph on the internet “for all to see.”19 The defendants argued that the University was immune from suit, and that the defendants were individually immune. The trial court agreed, dismissing the suit in its entirety.

        • Outcome: The court affirmed in part and reversed in part.20 The court affirmed the lower court’s determination that the University was immune from suit from plaintiff’s intentional tort claims. However, the court reversed the lower court’s finding that all claims against the individual defendants were barred by immunity, explaining that, “[t]o the extent that claims against the individuals, or some of them, include allegations of ‘willful, malicious, or criminal acts or omissions or for acts and omissions done for personal gain,’ those claims survive for further proceedings in the trial court on remand.”

    4. Practice Pointers

      • The Tennessee Supreme Court first recognized the tort of outrageous conduct or IIED in 1966, and the test often used for such claims was adopted from the Restatement (Second) of Torts § 46, cmt. d. The comment states, “[t]he cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tort[i]ous or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a decree of aggravation, which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’”21

      • “Outrageous conduct and intentional infliction of emotional distress are different names for the same cause of action.”22

      • Tennessee courts have adopted the majority rule under which a plaintiff is not required to submit scientific or medical expert testimony to support its claim of IIED.23

    1. “Outrageous conduct and intentional infliction of emotional distress are different names for the same cause of action.” Bain v. Wells, 936 S.W.2d 618, 622 n.3 (Tenn. 1997). 

    2. Medlin v. Allied Inv. Co., 398 S.W.2d 270 (Tenn. 1966). 

    3. Dunn v. Moto Photo, Inc., 828 S.W.2d 747, 754-55 (Tenn. Ct. App. 1991). 

    4. Id. at 754. 

    5. Id. (noting that the evidence showed “a gross, inexcusable and outrageous breach of a contract of bailment”). 

    6. Miller v. Willbanks, M.D., 8 S.W.3d 607, 609 (Tenn. 1999). 

    7. Id. at 610. 

    8. Id. at 613. 

    9. Id. (also noting that “the very nature of the tort of intentional infliction of emotional distress, ‘makes it impossible to quantify damages mainly on expert medical evidence.’”) (citing Chandler v. Denton, 741 P.2d 855, 867 (Okla. 1987)). 

    10. Id. at 616. 

    11. Steinbrunner v. Turner Funeral Home, Inc., No. E2001-00014-COA-R3-CV, 2002 WL 14088, at *2 (Tenn. Ct. App. July 15, 2002). 

    12. Id. at *8. 

    13. Id. at *9 (citing Ruff v. Memphis Light, Gas & Water Div., 619 S.W.2d 526, 528 (Tenn. Ct. App. 1981) (quoting Odum v. Haynes, 494 S.W.2d 795, 807 (Tenn. Ct. App. 1972)). 

    14. Cawood v. Booth, No. E2007-02537-COA-R3-CV, 2008 WL 4998408, at *4 (Tenn. Ct. App. June 15, 2009). 

    15. Shamblin v. Martinez, No. M2010-00974-COA-R3-CV, 2011 WL 1420896, at *3 (Tenn. Ct. App. Apr. 13, 2011). 

    16. Id. at *4. 

    17. Hannan v. Altel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008). 

    18. White v. Target Corp., W.2010-02372-COA-R3-CV, 2012 WL 6599814, at *5 (Tenn. Ct. App. Dec. 18, 2012) (citing Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 25-26 (Tenn. 2001) (expounding on the standard set forth in Hannan v. Altel Publ’g Co., 270 S.W.3d 1, 5, (Tenn. 2008)). 

    19. Phelps v. Newman, No. E2012-01065-COA-R3-CV, 2013 WL 28393, at *2 (Tenn. Ct. App. Jan. 3, 2013). 

    20. Id. at *7. 

    21. Cawood v. Booth, No. E2007-02537-COA-R3-CV, 2008 WL 4998408, at *10 (Tenn. Ct. App. June 15, 2009) (quoting Restatement (Second) Torts § 46, cmt. d). 

    22. Bain, 936 S.W.2d at 622 n.3. 

    23. Willbanks, 8 S.W.3d at 616. 

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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. Duty;

      2. Breach of duty;

      3. Injury or loss;

      4. Causation in fact; and

      5. Proximate or legal cause.1

    3. Cases

      1. Steinbrunner v. Turner Funeral Home, Inc., No. E2001-00014-COA-R3-CV, 2002 WL 14088 (Tenn. Ct. App. July 15, 2002)

        • Procedural Posture: Plaintiff appealed from lower court’s order dismissing on summary judgment her claim for damages caused by emotional distress she allegedly suffered when the medical examiner showed her photographs of her husband.

        • Law: Outrage; NIED.

        • Facts: Plaintiff’s husband died suddenly, and the medical examiner found the cause of death to relate to cardiovascular problems. At plaintiff’s request (she was not aware her husband had any heart problems), her husband’s body was disinterred by the Funeral Home and taken back to the medical examiner, who performed a complete autopsy. 5 years later, plaintiff again began to question the cause of death of her husband, and she requested a meeting with the medical examiner. During that meeting, the examiner showed her 11 photos of her husband’s body and warned her that the pictures would be graphic. She claimed she was traumatized due to the examiner’s failure to adequately warn her about the substance of the photos. The court granted summary judgment to the defendants because it found no evidence of material fact and felt it was entitled to a judgment as a meet law.”2

        • Outcome: The court affirmed on all counts. The court agreed that the conduct of the examiner was not outrageous because it was not “beyond the pale,” and did not result in mental injury. And importantly, plaintiff admitted that the examiner “warned her about” the photos before revealing them, and because she consented, she cannot now claim that his conduct was tortious. She also never told him to stop showing her the pictures. The court also dismissed plaintiff’s summary judgment claim holding that the Funeral Home owed plaintiff a duty of care to conform to a “reasonable” standard of care based on the parties’ relationship: “We find that the Funeral Home satisfied a reasonable person standard of care under all the circumstances present in this case. The Funeral Home maintained paperwork regarding the decedent, and reburied him in proper clothing. Moreover, because the Funeral Home did not have a duty to attach identification to the decedent’s body in 1992, the Funeral Home was not negligent in failing to attach such identification. . . . We find that S[redacted]’s claims of negligence are without merit.”3

        • Special Notes: The court also found that because plaintiff could not even establish an ordinary negligence claim, she also failed to establish a cause of action for “gross negligence,” which it describes as “a negligent act done with utter unconcern for the safety of others, or one done with such a reckless disregard for the rights of others that a conscious indifference for consequences is implied in law.”4

    1. Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993); see also Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993). 

    2. Steinbrunner, 2002 WL 14088, at *2. 

    3. Id. at *8. 

    4. Id. at *9 (citing Ruff v. Memphis Light, Gas & Water Div., 619 S.W.2d 526, 528 (Tenn. Ct. App. 1981) (quoting Odum v. Haynes, 494 S.W.2d 795, 807 (Tenn. Ct. App. 1972)). 

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  9. Injurious Falsehood

    1. Introduction

      If a sexual photo or video is published online, it may be accompanied by libelous written statements about the victim. These comments could include, but are not limited to written comments accompanying the photo/video.

    2. Elements

      1. The publication of a false statement harmful to the interests of another;

      2. Intent for the false statement results in harm or recognition that it is likely to do so;

      3. Knowledge that the statement is false or reckless disregard of a statement’s falsity.1

    3. Cases

      Research is ongoing.

    1. Wagner v. Fleming, 139 S.W.3d 295, 302 (Tenn. Ct. App. 2004). 

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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 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. A combination between two or more persons to accomplish by concert an unlawful purpose, or to accomplish a purpose not in itself unlawful by unlawful means;1 and

      2. The unlawful acts cause injury to a person or property.2

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      • Courts have held that the requisite elements are: (1) common design; (2) concert of action; and (3) an overt act.3

      • It is not “essential that each conspirator have knowledge of the details of the conspiracy, but a common purpose is essential and that each has the understanding that the other has the purpose and such purpose must be supported by concerted action.”4

    1. Brumley v. Chattanooga Speedway & Motordrome Co., 198 S.W. 775, 776 (Tenn. 1917); see also Dale v. Thomas H. Temple Co., 208 S.W.2d 344 (Tenn. 1948). 

    2. Tennessee Publ’g Co. v. Fitzhugh, 52 S.W.2d 157 (Tenn. 1932). 

    3. Brumley, 198 S.W. at 776. 

    4. Hux v. Butler, 220 F. Supp. 35, 41 (W.D. Tenn. 1963). 

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