Vermont Common Law

  1. 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 of a Claim

      1. A promise;

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

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

      4. The promisee is damaged by his reliance.

    3. Cases

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

    4. Practice Pointers

      Nothing relevant at this time.

    ↑ Back to top
  2. 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. In such cases, a plaintiff could try to make out a claim of conspiracy along with its other allegations.

    2. Text of the Statute and Elements of a Claim

      1. A common goal;

      2. Interdependence among the participants; and

      3. Overlap among the participants.1

    3. Cases

      Research is ongoing. There are no Vermont cases that are factually relevant or analogous to WMC’s target situations at this time.

    4. Practice Pointers

      Nothing relevant at this time.

    1. State v. Maduro, 816 A.2d 432, 436 (Vt. 2002) (citing United States v. Portela, 167 F.3d 687, 695 (1st Cir.1999) (footnote omitted)). 

    ↑ Back to top
  3. 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.1

    2. Elements of a Claim

      The plaintiff must show that another has:

      1. Appropriated his or her property to the party’s own use;

      2. Exercised dominion over the property in exclusion and defiance of the owner’s right;

      3. Withheld possession from the owner under a claim of title inconsistent with the owner’s title; or

      4. Retained property after the owner’s rightful demand.2

    3. Cases

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

    4. Practice Pointers

      Intent is not a prerequisite for liability for a conversion claim.3

    1. In many states, a trespass to chattels claim is a lesser version of a conversion claim. However, there are no Vermont cases mentioning a “trespass to chattels” claim, so it does not seem to be viable in Vermont. There also does not appear to be a viable civil trespass claim. 

    2. Economou v. Carpenter, 207 A.2d 241, 243 (Vt. 1965) (noting that the “key element” of conversion is the wrongful exercise of dominion over another’s property). 

    3. P.F. Jurgs & Co. v. O’Brien, 629 A.2d 325, 328-39 (Vt. 1993). 

    ↑ Back to top
  4. 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, or is seeking sex in exchange for money.

    2. Elements of a Claim

      1. A false and defamatory statement concerning the plaintiff;

      2. The defendant acted with some negligence or greater fault in publishing the statement;

      3. The statement was published to at least one third person;

      4. The defendant was not privileged in the publication of the statement;

      5. Defendant’s publication caused the plaintiff to suffer special damages; and

      6. Defendant’s publication caused the plaintiff actual harm warranting compensatory damages.1

    3. Cases

      1. Crump v. P&C Food Mkts., Inc., 576 A.2d 441 (Vt. 1990)

        • Procedural Posture: Defendant’s appeal from a jury verdict in favor of plaintiff.

        • Law: defamation, IIED

        • Relevant Facts: Defendant dismissed plaintiff, an employee for 18 years, in August 1983. Plaintiff had served as the head receiver of dry goods at the defendant’s Vermont distribution center. He was dismissed following an incident in which he placed some rejected merchandise on an outgoing truck, intending to pick it up later for his personal use. One of plaintiff’s responsibilities was to reject merchandise delivered to the facility if it was damaged or had not been ordered by the defendant. Truckers would sometimes refuse to take rejected merchandise back onto their trucks, and would instead, leave it at the distribution center, where it was either salvaged and placed into inventory, or given to the employees to take home for their personal use. The incident leading up to plaintiff’s dismissal involved two rejected cases of merchandise—a case of breakfast cereal, and a case of toaster pastries. Defendant had no obligation to pay for these rejected cases of food. The independent trucker declined to receive them back onto her truck, but rather, offered them to plaintiff, who accepted them and offered to share them with some former employees before placing them by his desk to take home. However, in so doing, plaintiff failed to follow defendant’s prescribed procedures for rejected merchandise—he failed to put the cases into the salvage area and did not obtain a gate pass from his supervisor. In a meeting after the incident, plaintiff was accused of theft, and characterized as a problem employee guilty of theft in two written reports. Plaintiff’s supervisors prepared written reports after the meeting, and the reports were distributed to directors and representatives of the defendant. There was a dispute as to whether the report was also orally made to the security manager for the trucking firm whose driver had removed the merchandise from the defendant’s facility, and whether the incident was discussed with the driver and another employee of the trucking firm. Plaintiff also presented evidence on the effect of the incident on his social life, his health, and his reputation.

        • Outcome: The court affirmed plaintiff’s claim for defamation because he had put forth sufficient evidence of malice, and that he had been damaged by defendant. The court rejected defendant’s claim of the “conditional privilege protecting legitimate business interests” because the jury could have found that the merchandise did not belong to defendant, making its claim of theft reckless, and because defendant provided the reports accusing plaintiff of theft to people outside the organization. The court explained that because false accusation of theft was actionable per se, plaintiff had put forth sufficient evidence at trial to go to the jury on this issue. In regards to IIED, the court concluded that plaintiff produced enough evidence at trial for the case to go to the jury on IIED because the manner in which plaintiff was terminated constituted oppression. The facts showed that defendant’s representative “summoned plaintiff to a lengthy meeting without notice, continued the meeting without a break for rest or food, repeatedly badgered him to amend and sign a statement, and that plaintiff did not feel free to leave the meeting. Immediately after the meeting, defendant’s representative directed plaintiff to clean out his desk, a summary dismissal after eighteen years of service.”2

        • Special Notes: The court also explained that punitive damages need not bear a relationship to compensatory damages. “An award of punitive damages may stand as long as the evidence supports the showing of malice.”3

      2. Ryan v. Herald Ass’n, Inc., 566 A.2d 1316 (Vt. 1989)

        • Procedural Posture: Appeal by newspaper from jury determination that it was liable for compensatory and punitive damages for libel.

        • Law: defamation

        • Relevant Facts: Plaintiff Dan Ryan, sued The Rutland Herald for libel for printing a story about illegal dumping that named him as a truck driver who hauled hazardous waste, when in fact, the driver in question was his cousin, Jack Ryan. After the author of the article learned of the error, the paper published a correction. The author explained that he had checked Ryan’s name in the telephone book after getting the name from his sources, but had simply assumed that “Jack” was a nickname for “Dan.” After the article, and despite the retraction, plaintiff was “razzed” by people from time to time about being a hazardous waste trucker, and he claimed that the article was embarrassing and humiliating. After a trial, the jury awarded plaintiff $1 in compensatory damages and $5,000.00 in punitive damages. The defendant appealed.

        • Outcome: The court affirmed the $1 in compensatory damages, but reversed the punitive damages award. The court determined that the plaintiff was only able to prove that the defendant was negligent in its publication of the defamatory material—not intentionally malicious—so actual damages had to be proven, and punitive damages were unavailable. The court explained, “[t]he facts here simply do not measure up to either sort of malice; neither knowledge of falsehood, nor reckless disregard for the truth, nor actual ill will, nor a wanton disregard of plaintiff’s rights are supported by the record.”4

        • Special Notes: The court explained that a victim could show defamation if an article “tends to lower him in the estimation of a substantial respectable group.”5

    4. Practice Pointers

      Nothing relevant at this time.

    1. Wilkinson v. Russell, 973 F. Supp. 437, 440 (D. Vt. 1997) (citing Crump v. P&C Food Mkts., Inc., 576 A.2d 441, 446 (Vt. 1990) (setting forth the elements of a claim of defamation in Vermont)). 

    2. Crump, 576 A.2d at 448-49. 

    3. Id. 

    4. Ryan v. Herald Ass’n, Inc., 566 A.2d 1316, 1322 (Vt. 1989). 

    5. Id. at 1321. 

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

    1. Introduction

      The victim of the nonconsensual online publication of intimate photographs or videos may sue under the common law tort 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 of a Claim

      1. Extreme and outrageous conduct;

      2. Done intentionally or with reckless disregard of the probability of causing emotional distress; and

      3. The action has resulted in the suffering of extreme emotional distress.1

    3. Cases

      1. Sheltra v. Smith, 392 A.2d 431 (Vt. 1978)

        • Procedural Posture: Appeal from dismissal of plaintiff’s complaint for failure to state a claim upon which relief can be granted.

        • Law: IIED

        • Relevant Facts: The Court certified the question of whether it would recognize an IIED claim. Plaintiff’s complaint alleged that “(1) Between approximately September 10, 1977 and October 7, 1977, the Defendant willfully, maliciously, intentionally, and outrageously inflicted extreme mental suffering and acute mental distress on the Plaintiff, by willfully, maliciously, and outrageously rendering it impossible for any personal contact or other communication to take place between the Plaintiff and her daughter Monica Smith.”2

        • Outcome: The court reversed and remanded, electing to recognize an IIED claim. The court explained that IIED has gained “sufficient acceptance to be characterized as the general rule” in several states, and under many circumstances.3 Moreover, the Court stated that the difficulties advanced as reasons for not recognizing IIED were not enough to eliminate it as an option.

        • Special Notes: The court noted that “[v]arious reasons have been advanced for not recognizing [IIED]. For example, it is claimed that proof will be difficult and that the measure of damages will be speculative. Yet, those difficulties have not been an insurmountable obstacle in cases where some slight physical injury also occurred. It would seem no more difficult to prove or measure damages in cases of mental distress than to prove and measure damages for pain and suffering in connection with a broken leg. Another frequently expressed reservation is that the recognition of this tort would result in fictitious claims and litigation over trivialities or mere bad manners. Nevertheless, it is the task of the law to remedy wrongs which merit redress even at the expense of incurring a ‘flood’ of litigation.”4

      2. Denton v. Chittenden Bank, 655 A.2d 703 (Vt. 1994)

        • Procedural Posture: Appeal from summary judgment ruling in favor of defendants, Chittenden Bank and Christopher Bishop, and dismissing plaintiff’s claims.

        • Law: IIED, invasion of privacy

        • Relevant Facts: Plaintiff, Denton, was once a maintenance worker at the defendant bank, but after 10 years, he was promoted to assistant VP in charge of buildings and grounds. He was considered a valued employee by his boss. However, that boss left the bank in 1987, and defendant Bishop took over as plaintiff’s supervisor. Bishop purportedly mistreated Denton and overworked him, and Denton eventually took disability leave from work. After returning to work for a short term, he took short-term and long-term disability leave before being terminated.5 During that leave, Bishop came to his house and began asking him “embarrassing” questions about his health in front of friends and family, embarrassing Denton and distressing him. Denton sued for damages.

        • Outcome: The court affirmed the lower court’s summary judgment for the defendant. As to the IIED claim, the court explained that “taking all of plaintiffs’ allegations as true, Bishop’s conduct did not, as a matter of law, reach the level of extreme outrage necessary to permit a jury to reasonably find liability” because plaintiff had only pleaded facts suggesting defendant’s behavior was “rude,” not that it was outrageous.6 The court also dismissed the invasion of privacy claim asserting that Bishop’s questions about Mr. Denton’s health.

        • Special Notes: Judge Gibson issued a scathing dissent regarding the IIED and privacy claims. Justice Gibson stated that the issue of whether the humiliating conduct was outrageous should be left for the jury.7 The court also noted that a “series of incidents may be considered together to determine if the conduct alleged is extreme.8

      3. Crump v. P&C Food Mkts., Inc., 576 A.2d 441 (Vt. 1990)

        • Procedural Posture: Defendant’s appeal from a jury verdict in favor of plaintiff.

        • Law: defamation, IIED

        • Relevant Facts: Defendant dismissed plaintiff, an employee for 18 years, in August 1983. Plaintiff had served as the head receiver of dry goods at the defendant’s Vermont distribution center. He was dismissed following an incident in which he placed some rejected merchandise on an outgoing truck, intending to pick it up later for his personal use. One of plaintiff’s responsibilities was to reject merchandise delivered to the facility if it was damaged or had not been ordered by the defendant. Truckers would sometimes refuse to take rejected merchandise back onto their trucks, and would instead, leave it at the distribution center, where it was either salvaged and placed into inventory, or given to the employees to take home for their personal use. The incident leading up to plaintiff’s dismissal involved two rejected cases of merchandise—a case of breakfast cereal, and a case of toaster pastries. Defendant had no obligation to pay for these rejected cases of food. The independent trucker declined to receive them back onto her truck, but rather, offered them to plaintiff, who accepted them and offered to share them with some former employees before placing them by his desk to take home. However, in so doing, plaintiff failed to follow defendant’s prescribed procedures for rejected merchandise—he failed to put the cases into the salvage area and did not obtain a gate pass from his supervisor. In a meeting after the incident, plaintiff was accused of theft and characterized as a problem employee guilty of theft in two written reports. Plaintiff’s supervisors prepared written reports after the meeting, and the reports were distributed to directors and representatives of the defendant. There was a dispute as to whether the report was also orally made to the security manager for the trucking firm whose driver had removed the merchandise from the defendant’s facility, and whether the incident was discussed with the driver and another employee of the trucking firm. Plaintiff also presented evidence on the effect of the incident on his social life, his health, and his reputation.

        • Outcome: The court affirmed plaintiff’s claim for defamation because he had put forth sufficient evidence of malice, and that he had been damaged by defendant. The court rejected defendant’s claim of the “conditional privilege protecting legitimate business interests” because the jury could have found that the merchandise did not belong to defendant, making its claim of theft reckless, and because defendant provided the reports accusing plaintiff of theft to people outside the organization. The court explained that because false accusation of theft was actionable per se, plaintiff had put forth sufficient evidence at trial to go to the jury on this issue. In regards to IIED, the court concluded that plaintiff produced enough evidence at trial for the case to go to the jury on IIED because the manner in which plaintiff was terminated constituted oppression. The facts showed that defendant’s representative “summoned plaintiff to a lengthy meeting without notice, continued the meeting without a break for rest or food, repeatedly badgered him to amend and sign a statement, and that plaintiff did not feel free to leave the meeting. Immediately after the meeting, defendant’s representative directed plaintiff to clean out his desk, a summary dismissal after eighteen years of service.”9

        • Special Notes: The court also explained that punitive damages need not bear a relationship to compensatory damages. “An award of punitive damages may stand as long as the evidence supports the showing of malice.”10

    4. Practice Pointers

      Nothing relevant at this time.

    1. Denton v. Chittenden Bank, 655 A.2d 703, 706 (Vt. 1994). 

    2. Sheltra v. Smith, 392 A.2d 431, 433 (Vt. 1978). 

    3. Id. at 432. 

    4. Id. at 432-33. 

    5. Denton, 655 A.2d at 706. 

    6. Id. at 706-07. 

    7. Id. at 708-12 (Gibson, J. dissenting) 

    8. Id. at 711. 

    9. Crump, 576 A.2d at 448-49. 

    10. Id. 

    ↑ Back to top
  6. Invasion of Privacy (General)

    1. Introduction

      There is no statutory right to privacy in Vermont, but it has adopted the four forms of invasion of privacy set forth in Restatement (Second) of Torts § 652A (1977). There is also a right to privacy in the Vermont Constitution, as Chapter 1, Article 11 states: “That the people have a right to hold themselves, their houses, papers, and possessions, free from search and seizure; and therefore warrants, without oath or affirmation first made, affording sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property not particularly described, are contrary to that right, and ought not be granted.”11 However, the constitutional right applies mostly in the context of allegedly unlawful searches and seizures (with or without a warrant), and is not relevant in this context.

      Depending on the circumstances, a WMC victim could potentially allege four types of invasion of privacy (appropriation, intrusion, publicity, or false light), but there is limited Vermont case law on any of these claims. 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. Appropriation of Likeness

        1. An appropriation of plaintiff’s likeness or image without his or her consent;

        2. Resulting harm to the plaintiff; and

        3. Resulting benefit to the defendant.1

      2. Intrusion on Seclusion

        1. A substantial interference with plaintiff’s solitude—either as to her person or as to her private affairs or concerns; and

        2. The interference would be highly offensive to a reasonable person.2

      3. Publicity of Private Life

        1. Defendant gave unreasonable publicity to the plaintiff’s private life without plaintiff’s consent;

        2. Plaintiff was injured by the publicity.3

      4. False Light

        1. Defendant publicizes a matter concerning plaintiff that places plaintiff in a false light;

        2. Defendant acts with reckless disregard as to the truth or falsity of the publicized matter, and the false light in which the plaintiff would be placed; and

        3. The false light in which plaintiff was placed would be highly offensive to a reasonable person.4

    3. Cases

      1. Lemnah v. Am. Breeders Serv., Inc., 482 A.2d 700 (Vt. 1984)

        • Procedural Posture: Defendant appealed from a judgment of liability for breach of contract and invasion of privacy.

        • Law: invasion of privacy (publicity)

        • Relevant Facts: Plaintiff and defendant had a written contract under which plaintiff agreed to be a distributor and representative salesperson of defendant, a producer and marketer of bovine semen for sale. Plaintiff distributed semen for defendant in two Vermont counties. Plaintiff also marketed services, such as artificial insemination of cows, independent of his contract with the defendant. One provision of the contract provided that the agreement could be terminated by defendant without notice if the plaintiff owed any balance on the contract. Plaintiff was consistently late in making payments under the contract for several years, and defendant continually warned plaintiff that it would no longer accept late payments. Eventually, defendant exercised its termination right under the contract. Plaintiff sued for breach of contract and invasion of privacy. There was testimony introduced at trial about statements made by an employee of the defendant concerning plaintiff’s termination. The witness, “a customer of plaintiff, asked defendant’s employee why plaintiff had been terminated,” and the “witness testified that defendant’s employee said plaintiff had been terminated for two reasons: (1) other farmers had indicated that semen which plaintiff had sold them had thawed and been refrozen and was not performing properly, and (2) plaintiff had a heavy drinking problem. Furthermore, this same employee of the defendant testified that there was a discussion of plaintiff’s termination at every farm he visited.”5 After trial, the jury returned a verdict for defendant on both the invasion of privacy action and the contract action.

        • Outcome: The court found for the defendant on the invasion of privacy claim, holding that there was insufficient evidence of publicity for the tort to have been submitted to the jury since the testimony indicated that the statements were made to only one person. “The quoted testimony in no way indicates that information about the plaintiff was disseminated to the public at large or that any information was substantially certain to become public knowledge. The statement about ‘every farm you went to’ was never linked to the specific comments alleged to be tortious. The only thing defendant’s employee admitted discussing ‘at every farm’ was plaintiff’s termination.”6 Because the court determined that there was insufficient publicity of the statements made, plaintiff had no invasion of privacy claim against the defendant.

        • Special Notes: The court relied on case law from Vermont and several other jurisdictions in which courts had held that publicity requires more than just a limited communication to one or a small group of people.7 The court also remanded the issue of breach of contract because it determined that plaintiff had put forth a viable invasion of privacy claim, and properly alleged damages by showing that he suffered depression and disability following the termination that affected his ability to work.8

      2. Hodgdon v. Mt. Mansfield Co., Inc., 624 A.2d 1122 (Vt. 1992)

        • Procedural Posture: Appeal from superior court decision dismissing claims for invasion of privacy, and sex and handicap discrimination.

        • Law: invasion of privacy (intrusion on seclusion)

        • Relevant Facts: Plaintiff was a chambermaid at a ski resort. She was missing her upper teeth, and though she owned dentures, she did not wear them because they were uncomfortable. Defendant hired a new executive housekeeper who wanted to upgrade the resort to obtain a “four star” rating, and one concern included the resort’s employees’ appearances. The housekeeper sent plaintiff a letter informing her that defendant was concerned about upgrading the way its employees are perceived by the public, and that it would begin to expect its employees to have teeth and wear them to work each day. Plaintiff responded that her dentures did not fit her properly, and she asked to be allowed to return to work at least until she was able to afford a new set. Defendant would not compromise. Defendant held her job open for a few days, but fired plaintiff when she failed to return to work within the proposed deadline.

        • Outcome: The court affirmed the dismissal of the invasion of privacy claim. The court explained that the one letter from the defendant threatening termination, although “perhaps insensitive under the circumstances” was insufficient to constitute an invasion of privacy as a matter of law.9 The court explained that “[t]here was simply no substantial intrusion and no error in the trial court’s ruling.”10

        • Special Notes: The court cited Pennsylvania and South Carolina cases in which a single alleged “intrusion” had failed to suffice to show an invasion of privacy.11 The reliance on persuasive authority was likely necessitated by the lack of Vermont law on point, which suggests that WMC victims should not hesitate to consider other jurisdictions’ law in presenting their claims.

      3. Staruski v. Continental Tel. Co. of Vt., 581 A.2d 266 (Vt. 1990)

        • Procedural Posture: Certified question on appeal to the Vermont Supreme Court.

        • Law: invasion of privacy (appropriation)

        • Relevant Facts: Defendant company ran a series of advertisements featuring certain of its employees in Vermont newspapers. Plaintiff, a sales and service representative a one of defendant’s offices, was featured in one such advertisement. The ad included a photo of the plaintiff smiling broadly with the words, “Hi, I’m Cindy Staruski” in large letters besides the photo, and an accompanying attributing the following quotation to plaintiff: “[I]t has been exciting and reassuring to know that Continental continues to expand its equipment and services to meet its obligation to serve you.”12 Plaintiff sued defendant for invasion of privacy alleging that it had wrongfully appropriated her image. The case went to trial, and the jury awarded her $1,000 in compensatory damages, and $3,500 in punitive damages for her mental distress. However, the trial judge granted the defendant’s motion for JNOV on the grounds that plaintiff was not famous, and was therefore unable to prove that her name and identity had commercial value. Plaintiff appealed from the JNOV and claimed error in the court’s ruling limiting the scope of evidence on damages to those flowing from the “testimonial” portion of the advertisement.

        • Outcome: The court reversed the JNOV and because both parties were prejudiced by trial errors, the case was remanded for a new trial. First, the court exercised its power to adopt an appropriation claim, stating: “In the exercise of our power as a common law court, we now hold that a damage remedy for invasion of privacy by the appropriation of a person’s identity, at least when done for commercial purposes, should be available in appropriate circumstances in Vermont as in other states.”13 The court then explained that a plaintiff claiming an appropriation of his or her likeness need not be famous, but need only show that he or she was harmed by the defendant’s conduct, and that the defendant benefited. Here, because plaintiff suffered mental distress, and defendant “sought to reap the fruits of plaintiff’s prestige and standing as a ‘happy’ employee, as she was portrayed in the ad, despite its protestations that the ad was designed to convey only a ‘public service’ message. Plaintiff’s expert testified that this sort of advertising is ‘one of the most effective kinds,’ ‘more valuable than straight advertising saying we give good service.’”14

        • Special Notes: The court stressed that to prove benefit to a defendant required no dollar amount, rather, a defendant must have appropriated to its own use and benefit, the “reputation, prestige, social or commercial standing, public interest, or other values of the plaintiff’s name or likeness.”15

      4. Denton v. Chittenden Bank, 655 A.2d 703 (Vt. 1994)

        • Procedural Posture: Appeal from summary judgment ruling in favor of defendants, Chittenden Bank and Christopher Bishop, dismissing plaintiffs’ claims.

        • Law: IIED, invasion of privacy (intrusion)

        • Relevant Facts: Plaintiff, Denton, was once a maintenance worker at the defendant bank, but after 10 years, he was promoted to assistant VP in charge of buildings and grounds. His boss considered him a valuable employee. However, that boss left the bank in 1987, and defendant Bishop took over as plaintiff’s new supervisor. Bishop purportedly mistreated Denton and overworked him, and Denton eventually took disability leave from work. After returning to work for a short term, he took short-term and long-term disability leave before being terminated.16 During Denton’s long-term leave, Bishop came to his house and began loudly asking him “embarrassing” questions about his health in front of friends and family. Denton sued for damages.

        • Outcome: The court affirmed the lower court’s summary judgment for the defendant. As to the IIED claim, the court explained that “taking all of plaintiffs’ allegations as true, Bishop’s conduct did not, as a matter of law, reach the level of extreme outrage necessary to permit a jury to reasonably find liability” because plaintiff had only pleaded facts suggesting defendant’s behavior was “rude,” not that it was outrageous.17 The court also dismissed the invasion of privacy claim asserting that Bishop’s questions about Mr. Denton’s health.

        • Special Notes: Justice Gibson issued a scathing dissent regarding the IIED and privacy claims. He stated that the issue of whether the humiliating conduct was outrageous should be left for the jury.18 The court also noted that a “series of incidents may be considered together to determine if the conduct alleged is extreme.19

      5. Harris v. Carbonneau, 685 A.2d 296 (Vt. 1996)

        • Procedural Posture: Appeal from verdict in defendants’ favor after a jury trial on plaintiffs’ claims for civil trespass, IIED, and negligence.

        • Law: invasion of privacy; civil trespass; IIED; negligence

        • Relevant Facts: Plaintiffs Harris and O’Connell alleged that defendant Carbonneau, a deputy sheriff, came to their house to serve a summons and complaint from superior court on plaintiff O’Connell. Harris and O’Connell were both totally disabled at that time, and Harris was in a wheelchair. The parties disagreed as to the specific facts. Carbonneau asserted Harris had impliedly consented to allowing him in, and that he had identified himself as law enforcement. The plaintiffs alleged that he entered the house without permission to serve O’Connell, and that while he was departing, the door hit Harris and severely injured her. Plaintiffs sued for trespass, IIED, assault and battery, negligence, and invasion of privacy. The jury returned a verdict for the defendant, and the court denied plaintiffs’ motion for judgment notwithstanding the verdict or, alternatively, for a new trial.20

        • Outcome: The court rejected plaintiffs’ argument as to trespass because the law allows a process server to enter a dwelling without invitation or consent, and regardless, the issue of whether defendant’s actions in attempting to ascertain O’Connell’s residence constituted a trespass was a question for the jury, and not a question of law.21 The court also found that the jury had properly rejected plaintiffs’ invasion of privacy claim because “[t]he complaint failed to state that Carbonneau’s conduct was intentional, substantial, or highly offensive to a reasonable person,” which was the same as what was alleged in plaintiffs’ claims of trespass and negligence.

        • Special Notes: The case shows the importance that a plaintiff allege all elements of invasion of privacy to assert a viable claim for relief.

      6. TBH v. Meyer, 716 A.2d 31 (Vt. 1998)

        • Procedural Posture: Appeal from lower court decision entering summary judgment in favor of insurer and finding that plaintiff’s personal catastrophe policies provided no coverage for his act of filming and photographing a nude child.

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

        • Relevant Facts: Two minor children, T.B.H. and S.T., were playing at S.T.’s house, and they got dirty. Because of an issue with the water at S.T.’s house, the children could not wash, so they asked S.T.’s mother if they could take a bath at defendant’s home. S.T.’s mother called defendant, a close family friend, and asked his permission to use his bathroom. While the girls were in the defendant’s Jacuzzi, defendant took nude photographs and videos of the two girls. Upon learning of the incident, S.T.’s father reported defendant’s actions to the police. Defendant was convicted on two counts of violating 13 V.S.A. § 2822(a) (use of a child in a sexual performance), and the court affirmed. T.B.H. then commenced a civil suit against the defendant, alleging an invasion of privacy and defamation, seeking to have the originals of the video and photographs destroyed, and seeking a permanent restraining order against the defendant. The defendant’s insurer intervened and sought a declaratory judgment concerning its obligations under defendant’s two liability policies. The insurer and defendant filed cross motions for summary judgment on the issue. The lower court found that the conduct was covered by the policy because the defendant had not intended to harm the children.

        • Outcome: The Vermont Supreme Court reversed the lower court’s ruling and determined that the defendant’s actions were not covered. Despite the fact that the court had found no evidence that defendant had intended to harm the children, the “inferred-intent rule” applied because the defendant had been found guilty of lewd and lascivious conduct with a minor.22 Because Vermont case law reflected an enhanced concern for minors’ well-being, the court applied the “inferred-intent” rule, and found that his sexual exploitation of the children sufficed to bar coverage of his conduct by either insurance policy, and the insurer had no duty to indemnify the defendant.

        • Special Notes: The case explicitly stated that Vermont courts employed an expansive definition of “sexually abusive acts,” to include both physical sexual contact, and other forms of child abuse, such as sexual exploitation.23

    4. Practice Pointers

      All four forms of the invasion of privacy tort (intrusion, appropriation, publicity, and false light) are undeveloped in Vermont’s jurisprudence. Accordingly, a plaintiff may have to rely on persuasive authority to succeed on his or her claims.

    1. See Staruski v. Continental Tel. Co. of Vt., 581 A.2d 266, 269 (Vt. 1990). 

    2. Hodgdon v. Mt. Mansfield Co., Inc., 624 A.2d 1122, 1129 (Vt. 1992) (noting that intrusion is the only form of invasion of privacy that “does not require publicity of a person’s private interests or affairs”). 

    3. Lemnah v. Am. Breeders Serv., Inc., 482 A.2d 700, 704 (Vt. 1984). 

    4. State v. Brooks, 601 A.2d 963, 968-69 (Vt. 1991) (Morse, J., dissenting) (citing Restatement (Second) Torts § 652E). 

    5. Lemnah, 482 A.2d at 703. 

    6. Id. at 704 (citing Restatement (Second) Torts § 652D, comment a (noting that dissemination of information must be to the public at large, or a group of persons so large that the issue is substantially certain to become one of public knowledge). 

    7. Id. at 705 (citing cases). 

    8. Id. at 708. 

    9. Id. at 708. 

    10. Id. 

    11. Id. (citing DeAngelo v. Fortney, 515 A.2d 594, 595 (Pa. Super. Ct. 1986) (one telephone call and one mailing from contractors soliciting business insufficient to establish invasion of privacy); Corder v. Champion Road Mach. Int’l Corp., 324 S.E.2d 79, 82 (S.C. Ct. App. 1984) (no invasion of privacy where employer told plaintiffs they would be fired unless they withdrew workers’ compensation claims and then mailed them each a letter of termination)). 

    12. Staruski, 581 A.2d at 267. 

    13. Id. at 268. 

    14. Id. at 269-70. 

    15. Id. at 269 (citing Restatement (Second) Torts § 652C). 

    16. Denton v. Chittenden Bank, 655 A.2d 703, 706 (Vt. 1994). 

    17. Id. at 706-07. 

    18. Id. at 708-12 (Gibson, J. dissenting). 

    19. Id. at 711 (Gibson, J. dissenting). 

    20. Harris v. Carbonneau, 685 A.2d 296, 298-99 (Vt. 1996). 

    21. Id. at 299-300. 

    22. TBH v. Meyer, 716 A.2d 31, 33-34 (Vt. 1998). 

    23. Id. at 34. 

    ↑ Back to top
  7. 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 of a Claim

      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. Vaillancourt v. Med. Ctr. Hosp. of Vt., Inc., 425 A.2d 92 (Vt. 1980)

        • Procedural Posture: Interlocutory appeal with three certified questions following the trial court’s denial of defendants’ motion to dismiss the complaint under 12(b)(6).

        • Law: NIED

        • Relevant Facts: The defendant hospital conducts a general hospital in Burlington, Vermont. The defendant Lewis was a doctor, specializing in obstetrics. Plaintiffs, Mr. and Mrs. Vaillancourt, were a husband and wife, who engaged Dr. Lewis’s services to deliver their baby in August 1977. Mrs. Vaillancourt was admitted to the hospital with a diagnosis of active, early labor, and she was at “increased labor risk.” The hospital failed to adequately monitor the fetus and allegedly abandoned Mrs. Vaillancourt and her fetus for 3.5 hours. At the end of the period, the fetus died. Among other things, plaintiffs sought damages for their claim that Dr. Lewis was negligent in failing to advise the hospital of Mrs. Vaillancourt’s “high risk status” in other data, in failing to administer appropriate tests, and in failing to supervise and instruct hospital personnel.1 Plaintiffs alleged that they suffered emotional distress and substantial bodily injury from witnessing the fetal death.

        • Outcome: The court vacated the lower court decision. The court explained that Vermont would recognize an NIED claim in cases not involving physical impact, “only when accompanied by substantial bodily injury or sickness, and subject to the limitation that the plaintiff himself has been within the ‘zone of danger’ and subject to a reasonable fear of immediate personal injury.”2 However, because Mr. Vaillancourt had not alleged facts bringing him within the “zone of danger.”

        • Special Notes: If the plaintiff wanted to amend under 15(a), he or she could do so.3

    4. Practice Pointers

      Vermont adheres to the “zone of danger” rule for NIED claims. The zone of danger allows a plaintiff suing for NIED to recover damages if they were: (1) placed in immediate risk of defendant’s negligence, and (2) frightened by the risk of harm.4

      Vermont recognizes a claim of NIED in certain limited circumstances: “[W]here negligence causes fright from a reasonable fear of immediate personal injury, and such fright is adequately demonstrated to have resulted in substantial bodily injury or sickness, the injured person may recover if such injury or sickness would be proper elements of damage if they had resulted as a consequence of direct physical injury rather than fright.”5

      The factual issue in an NIED case of whether a defendant has exercised the high degree of care demanded by the law is one for the jury.6

      Where a party has established emotional distress but has failed to establish the underlying claim of “negligence,” there can be no recovery.7

    1. Vaillancourt v. Med. Ctr. Hosp. of Vt., Inc., 425 A.2d 92, 93 (Vt. 1980). 

    2. Id. at 97 (citing Savard v. Cody Chevrolet, Inc., 234 A.2d 656 (Vt. 1967) and Guilmette v. Alexander, 259 A.2d 12 (Vt. 1969)). 

    3. Id. at 95. 

    4. Brueckner v. Norwich Univ., 730 A.2d 1086, 1092 (Vt. 1999). 

    5. Savard, 234 A.2d at 660 (allowing plaintiff to recover her medical damages for severe mental emotional trauma she experienced following an incident where an out-of-control dump truck crashed into her home when she was an infant). 

    6. See Thompson v. Green Mountain Power Corp., 144 A.2d 786, 792 (Vt. 1958) (affirming decision finding defendant liable for the negligent use of explosives that damaged plaintiff’s poultry). 

    7. See, e.g., Taylor v. Fletcher Allen Health Care, 2012 VT 86 (Vt. 2012) (affirming decision denying plaintiff recovery for NIED in connection with her medical care following a spinal surgery because she failed to provide an expert on causation, and therefore, could not establish a viable negligence claim). 

    ↑ Back to top
  8. Prima Facie Tort

    1. Introduction

      A WMC victim will not be able to bring a cause of action for prima facie tort in Vermont because Vermont does not recognize the claim. Instead, it would be advisable for a victim making such allegations to bring an IIED claim.

    2. Elements of a Claim

      Not applicable.

    3. Cases

      1. Fromson v. State of Vt., Dep’t of Corr. & Celeste M. Girrell, Superintendent, 2004 VT 29, 848 A.2d 34 (Vt. 2004)

        • Procedural Posture: Plaintiff appealed rulings in favor of defendants dismissing plaintiff’s claim for IIED and denying his request to amend the complaint to add a prima facie tort claim.

        • Law: prima facie tort; IIED

        • Relevant Facts: Plaintiff was employed by defendant State Department of Corrections as a corrections officer for six years, and had never been subject to employee disciplinary actions. In the fall of 1998, he was selected as a facility steward for the Vermont State Employees Association (VSEA). In mid-July 1999, several junior officers approached plaintiff as the union steward and told him that two supervisors were coming to work drunk. Plaintiff reported the concerns to defendant superintendent, who thanked him for bringing the situation to her attention. A few days later, plaintiff was summoned to meet with the superintendent and told that he should bring a union representative to the meeting. While there, he was told that she was investigating a complaint brought against plaintiff by a supervisor (someone other than one of the supervisors that plaintiff had reported earlier) for using demeaning language about a supervisor. Plaintiff became concerned that the incident was blown out of proportion and not being handled properly. Around this time, plaintiff also noticed that the other officers and supervisors were treating him less congenially than they had before he reported the supervisors. He also began experiencing changes in his work conditions—his breaks were eliminated, and he was no longer given supervisory positions. Plaintiff was reprimanded, and had a couple of run-ins with his supervisor, and he brought a grievance against his supervisor, which was later denied. Plaintiff then sued for IIED and later sought to amend to add a prima facie tort claim. The lower court granted summary judgment for defendants on the IIED claim, and held that plaintiff could not amend the complaint because Vermont does not recognize a prima facie tort claim. Plaintiff appealed.

        • Outcome: The court affirmed the decision of the lower court. First, the court affirmed the dismissal of the IIED claim because plaintiff was simply unsuccessfully combining “a series of events without showing a significant outrageous act.”1 The court held that “Even if we were to make such a change in our law, we would do it by redefining the elements of IIED and not by adopting a new tort theory that would accomplish the same result. On this record, we decline to adopt prima facie tort.”2

        • Special Notes: The court explained that although Vermont courts have struggled with whether to observe a prima facie tort claim, where plaintiff was only trying to use a prima facie tort to “make up for the inability to prove an element of a specific intentional tort. In each, the courts have indicated that prima facie tort may not be used in that way.”3

    4. Practice Pointers

      A plaintiff seeking to show that defendant is liable for damaged cause by his or her “outrageous” conduct should consider IIED and note that the court has not adopted a prima facie tort claim.

    1. Fromson v. Vt. Dep’t of Corr. & Celeste M. Girrell, Superintendent, 2004 VT 29, 848 A.2d 344, at ¶¶ 14-18 (Vt. 2004). 

    2. Id. at ¶ 25. 

    3. Id. at ¶ 22. 

    ↑ Back to top