Washington Common Law

  1. Invasion of Privacy

    1. Introduction

      A WMC victim could potentially use the four theories of invasion of privacy to obtain relief for intentional and unwanted intrusions on their person/home/time that caused him or her damages (including emotional damages).

    2. Elements of a Claim

      To state a cause of action for invasion of privacy, a plaintiff must allege: (1) Intentional intrusion, physically or otherwise, upon the solitude or seclusion of plaintiff, or his private affairs; (2) With respect to the matter or affair which plaintiff claims was invaded, that plaintiff had a legitimate and reasonable expectation of privacy; (3) The intrusion would be highly offensive to a reasonable person; and (4) The defendant’s conduct was a proximate cause of damage to plaintiff.1

    3. Cases

      1. Reid v. Pierce County, 136 Wn.2d 195, 961 P.2d 333 (1998) (en banc)

        • Procedural Posture: Washington Supreme Court granted petition for review following superior court summary judgment for county or dismissal for failure to state a claim on which relief could be granted.

        • Law: Common law invasion of privacy; negligent infliction of emotional distress (“NIED”); outrage; constitutional right of privacy (Wash. Const. art. 1, § 7)

        • Relevant Facts: Plaintiffs, family members of decedents alleged claims against the County and its employees for appropriating and displaying to others photographs of corpses of plaintiffs’ deceased relatives without their permission.

        • Outcome: The court reversed the lower court’s denial of common law invasion of privacy claim and remanded to trial, but affirmed the lower court’s grant of summary judgment on or dismissal of remaining claims for outrage, NIED, and state constitutional right to privacy. The Court found outrage and NIED inapplicable because plaintiffs were not present at the time the photographs of their deceased relatives were displayed. State constitutional right to privacy claim dismissed because plaintiffs had “adequate relief under common law and . . . such actions are better addressed under the common law invasion of privacy action.”2

        • Special Notes: This is the first case in which the Washington Supreme Court expressly recognized an invasion of privacy tort.3

      2. White v. Twp. of Winthrop, 128 Wn. App. 588, 116 P.3d 1034 (Wash. Ct. App. 2005)

        • Procedural Posture: Appeal by plaintiff of lower court’s grant of summary judgment to former employer defendant township on his statutory claims of disability discrimination and common law invasion of privacy.

        • Law: invasion of privacy

        • Relevant Facts: Plaintiff was a reserve deputy marshal for the township. He suffered from epilepsy, and had a seizure that resulted in restrictions on his ability to work. After a discussion with his superiors in which he indicated that he wanted his medical conditions kept confidential, plaintiff elected to resign from his position as deputy marshal. The next day, a newspaper article publicized that plaintiff was resigning because he had had a seizure that prevented him from continuing to serve as the deputy marshal, and plaintiff sued.

        • Outcome: The court affirmed the dismissal of the disability discrimination claim because the plaintiff no viable claim under the statute where his claim was not brought in regards to applying for a job or being fired from a job. The court reversed the summary judgment dismissal of invasion of privacy claim because facts and circumstances suggested that the claim should be left for a jury’s consideration. The release of private medical information has been found to amount to an invasion of privacy in other courts, and the remaining questions re: the public interest in the contents of the article, the reasonableness of the article and plaintiff’s reaction, etc. were questions of fact that should be left only for a jury’s determination.4

        • Special Notes: The court specifically noted that “Washington courts have acknowledged that people make prejudgments about persons with epilepsy.”5

      3. Doe v. Gonzaga Univ., 143 Wn.2d 687, 24 P.3d 390 (2001) (en banc), portion rev’d on other grounds, Gonzaga Univ. v. Doe, 536 U.S. 273 (2002)

        • Procedural Posture: Court of appeals reversed jury verdict for plaintiff on the negligence, invasion of privacy, § 1983 and breach of contract awards, and remanded for new trial on defamation claim, and for imposition of discovery sanctions. The Washington Supreme Court reinstated the jury verdict, awarding damages for invasion of privacy and defamation for claims arising from investigation by University of alleged sexual misconduct of a candidate for a teaching certificate.

        • Law: defamation; negligence; invasion of privacy; Family Educational Rights and Privacy Act (“FERPA”); 42 U.S.C. § 1983

        • Relevant Facts: Gonzaga University and University employees denied teaching certificate to student, John Doe, following a University investigation into allegations made by others that John Doe had sexually assaulted another student—Jane Doe—a few years prior. University made no attempt to discuss alleged assault with John Doe and Jane Doe denied occurrence of the assault. The investigation was based on rumors by individuals who claimed that Jane Doe had told them about the incidents of sexual assault. John Doe sued for relief under various common law and statutory claims and jury awarded him money damages and attorneys’ fees.

        • Outcome: The court reinstated jury verdict awarding damages of $1.155 million to plaintiff John Doe. The court found that the university and its employees could be liable on defamation claim even though the statements in question were only made among university personnel and not among those outside the university’s community. The court also found that the evidence supported that the University had invaded plaintiff’s privacy. Although the University claimed that there was nothing “highly offensive” about its attempts to determine the facts about John Doe’s relationship with Jane Doe, jury was “presented with sufficient evidence of investigative activities to determine that John Doe’s privacy had been invaded, and that such an intrusion would be highly offensive to a reasonable person.”6

      4. Mark v. Seattle Times, 96 Wn.2d 473, 635 P.2d 1081 (1981) (en banc)

        • Procedural Posture: Washington Supreme Court granted motion to transfer appeal on fifth of five cases brought by plaintiff against various newspapers and television stations.

        • Law: defamation; false light; invasion of privacy

        • Relevant Facts: State prosecutor publicized charging documents in Medicaid fraud case, and newspapers and television statements published statements asserting that plaintiff, a Seattle pharmacist, was a defendant in the largest Medicaid fraud ever filed in the state, and various other related statements. One television station also videotaped thirteen seconds of footage of plaintiff in his pharmacy taken from outside the store window (video camera was placed up against the pharmacy window). The plaintiff sued various newspapers and television statements for defamation.

        • Outcome: The court affirmed summary judgment on plaintiffs’ claims of defamation against defendants for failure to establish elements of prima facie case of defamation with convincing clarity. The court also determined that plaintiff could not show falsity or that respondents knew/should have known that statements in the official papers were false. The court affirmed summary judgment for defendant on invasion of privacy claim because the intrusion was a “minimal” one and there was a dispute as to whether the cameraman shot the film from public or private property.7

      5. Moloney v. Tribune Publ’g Co., 26 Wn. App. 357, 613 P.2d 1179 (Wash. Ct. App. 1980)

        • Procedural Posture: The court affirmed summary judgment for defendant on plaintiffs’ claims of invasion of privacy and outrage arising from newspaper article quoting sheriff about investigation of potential homicide of plaintiffs’ deceased daughter.

        • Law: invasion of privacy; outrage

        • Relevant Facts: Plaintiffs’ daughter had been involved in an incident in the past where she was seen running half-naked through the street, relating to an alleged assault by her then-boyfriend, who later fathered her child. The incident got some local publicity. She was found several months later dead on the side of the road, with no clothes, and appeared to have been the victim of a hit-and-run accident. The sheriff spokesperson gave the newspaper information about circumstances of woman’s death, asserting that the information had come from her family—stating that the girl was naked and that illegal drugs may have been in her system. Plaintiffs sued the newspaper for the statements, alleging that they had damaged the family.

        • Outcome: The court granted summary judgment for the defendants. The court explained that the defendants had no viable claim of invasion of privacy where the newspaper simply quoted the sheriff working in his official capacity. (Because he was working in his official capacity, the sheriff himself was immune from tort liability, regardless of the accuracy of the information.) Where the article arose from “official action,” and the newspaper attributed the statements complained about (re: streaking and drug use) to the sheriff representative, the newspaper acted reasonably under the circumstances, and no claim could follow.

        • Special Notes:

          • To the extent that Moloney granted governmental immunity for all discretionary decisions, the case has been overruled by Chambers-Castanes v. King County, 100 Wn.2d 275, 283, 669 P.2d 451 (1983) (en banc).

          • This case provides an example of the media privilege. “The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgment of the occurrence reported.”8

          • Washington’s Fair Reporting Privilege was enacted to serve the public’s interest in obtaining information about what transpires in official proceedings and in public meetings: “No prosecution for libel shall be maintained against a reporter, editor, proprietor or publisher of a newspaper for the publication therein of a fair and true report of any judicial, legislative or other public and official proceeding, or of any statement, speech, argument or debate in the course of the same, without proving actual malice in making the report.”9

          • The qualified privilege re: public official or public figure is not lost unless the defamatory statements are published with malice, and plaintiff must show fault by the publisher in not acting reasonably to insure that the report is accurate and complete or a fair abridgment.

    4. Practice Pointers

      There is a media privilege regarding the publication of information. The key is that media not publish potentially offensive statements “maliciously”—e.g. while knowing that the information was untrue.

    1. Reid v. Pierce County, 136 Wn.2d 195, 205, 961 P.2d 333 (1998). 

    2. Id. at 213-14. 

    3. Id. at 214. 

    4. White, 129 Wn. App. at 596-97. 

    5. Id. at 596. 

    6. Gonzaga, 143 Wn.2d at 706. 

    7. Mark, 96 Wn.2d at 499. 

    8. Moloney, 26 Wn. App. at 361. 

    9. RCW 9.58.050. 

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  2. Invasion of Privacy (“Placing another in a false light”) – False light

    1. Introduction

      Washington has never explicitly adopted the tort of false light invasion of privacy, but Washington courts have noted that it is likely that they will expressly recognize the tort in the future. The victim of the nonconsensual online publication of intimate photographs or videos may bring a common law action for false light if he or she can argue that the material makes it seem that he or she is something he or she is not (for example: that he or she aspires to be a porn star or that he or she is an exhibitionist).

    2. Elements of a Claim

      To state a cause of action for false light invasion of privacy, a plaintiff must allege: (1) Public disclosure; (2) That puts plaintiff in a false light; (3) Plaintiff must show with convincing clarity that he or she was person about whom the publication was made; (4) The false light would be “highly offensive to a reasonable person”; and (5) The actor knew of or recklessly disregarded the falsity of the publication and the false light in which the other would be placed: (a) For issues of public concern – a public figure plaintiff cannot recover without proof of actual malice; and (b) For issues of private concern – no actual malice required.1

    3. Cases

      1. Eastwood v. Cascade Broad., 106 Wn.2d 466, 722 P.2d 1295 (Wash. 1986) (en banc)

        • Procedural Posture: Washington Supreme Court granted petition to review issue of whether a false light invasion of privacy claim should be governed by a 2-year statute of limitations (as for libel and slander) or a 3-year statute of limitations (as for injury to the person or rights of another).

        • Law: invasion of privacy (false light)

        • Relevant Facts: Plaintiff sued three Yakima television stations that broadcasted statements naming plaintiff as an unindicted co-conspirator in a criminal matter filed in federal district court, alleging that allegations were utterly false.

        • Outcome: Holding that the statute of limitations for false light claims is identical to that for defamation claims—two years. Court found that the overlap between the two torts was significant enough that the same statute of limitations should apply to both.

        • Special Notes: Court questioned the wisdom of creating a false light privacy tort where the overlap with defamation was so close, noting that the North Carolina Supreme Court had specifically declined to do so. The North Carolina Supreme Court explained: “First, any right to recover for a false light invasion of privacy will often either duplicate an existing right of recovery for libel or slander or involve a good deal of overlapping with such rights. Second, the recognition of a separate tort of false light invasion of privacy, to the extent it would allow recovery beyond that permitted in actions for libel or slander, would tend to add to the tension already existing between the First Amendment and the laws of torts in cases of this nature.”2

      2. Paterson v. Little, Brown & Co., 502 F. Supp. 2d 1124 (W.D. Wash. 2007)

        • Procedural Posture: Defendants’ motion for summary judgment on all of plaintiffs’ claims for relief.

        • Law: defamation; false light invasion of privacy

        • Relevant Facts: Plaintiff computer operating system developer, sued author and publisher of a book of essays about American inventors, alleging defamation and false light invasion of privacy where author’s statements insinuated that in developing DOS, he “ripped off” Microsoft’s operating system.

        • Outcome: The court granted summary judgment to defendants on all claims. The court held that plaintiff, a limited purpose public figure who had injected himself into the public by publishing statements attempting to defend himself, had failed to show that statements were untrue or were made with actual malice, and, therefore, could not make out a prima facie case of either defamation or false light invasion of privacy.

      3. Caspary v. State, No. 36689-1I-I, 1997 WL 103688 (Wash. Ct. App. Mar. 10, 1997)

        • Procedural Posture: Appeal from summary judgment for defendant state on various tort claims

        • Law: outrage; invasion of privacy (false light); breach of duty to discover and warn of inmate’s HIV status; violation of physician-patient privilege

        • Relevant Facts: Plaintiff was a corrections officer at a state prison. He was bitten by an inmate, who later tested HIV-positive. As a result of the bite, which was witnessed by several other guards/inmates, plaintiff alleged that he was harassed, and ridiculed by his co-workers and by the other prison inmates. He also claims that the State caused him and his wife severe emotional distress when they called his home to notify him of the inmate’s status, and spoke to his wife, who was unmoored by the news. (Apparently, plaintiff had informed his wife that everything was fine in an effort to convince her that it was safe to have sex with him, and she was distraught when she learned the truth of the situation. When the administrator called her home, she had a sense of what it was regarding, and she forced the issue, despite the administrator’s efforts to tell only plaintiff himself.) Finally, plaintiff claims that the prison officials improperly disclosed his health information and breached their duty to warn him of the HIV status. He received Industrial Insurance Act (“IIA”) benefits for his physical and psychological injuries, and he sought these damages in addition to those benefits, claiming the emotional distress was separate. The lower court had granted summary judgment to the State.

        • Outcome: The court affirmed summary judgment for the State on all claims. The majority of the outrage claim was not a separate claim because it arose out of plaintiff’s employment and the fact that disclosure of his test results was required by a written policy, and the bite and harassment by inmates constituted “occupational” injuries. However, the court reviewed the merits of the portion of the outrage claim arising from plaintiff’s wife being contacted by plaintiff’s employer regarding her husband’s HIV status. The court found, however, that the outrage claim failed on its merits because the prison’s decision to call plaintiff at home was reasonable under the circumstances—he was not due to be at work until the following week, and his employer wanted to ensure that he heard the HIV status of the inmate from the administration, rather than through the rumor mill—and certainly was not extreme and atrocious enough to be “intolerable in a civilized community.”3 Although the false light claim was not barred by the IIA, it failed on its merits because “a rational trier of fact could find nothing intrusive about the fact of the call [to plaintiff’s wife] or in Mr. W’s responses to [plaintiff’s wife].”4 Also, plaintiff failed to put forth sufficient evidence to support liability in the defendants for the fact that there was public hysteria surrounding the inmate’s HIV status. Finally, the defendants had no “duty to warn,” because there was no evidence that the defendants had “actual knowledge that an injury was certain to occur and willfully disregarded that knowledge.”5

    4. Practice Pointers

      • This claim overlaps with defamation. However, while the purpose of defamation is to compensate the injured party for damage to his reputation, the purpose of false light invasion of privacy is to recover for injured feelings and mental suffering. Notably, however, although a plaintiff can bring both a false light privacy claim and a defamation claim, only one recovery is permitted.6

      • A plaintiff need not be defamed to bring a false light action.

    1. Eastwood v. Cascade Broad. Co., 106 Wn.2d 466, 470, 722 P.2d 1295 (1986) 

    2. Id. at 473-74 (citing Renwick v. News & Observer Publ’g Co., 310 N.C. 312, 323, 312 S.E.2d 405, cert. denied, 469 U.S. 858, 105 S. Ct. 1987, 83 L.Ed.2d 121 (1984)). 

    3. Caspary, 1997 WL 103688 at *8. 

    4. Id. at *10. 

    5. Id.at *13 (citing Birklid, 127 Wash.2d at 853). 

    6. Eastwood, 106 Wn.2d at 471. 

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  3. Invasion of Privacy (“Public disclosure of private facts”) - Publication of Private Facts

    1. Introduction

      A public disclosure of private facts claim will be useful for virtually any victim of a nonconsensual publication of sexual photos or videos.

    2. Elements of a Claim

      Publication of the private affairs of another where the matter publicized would be highly offensive to a reasonable person.1

    3. Cases

      1. Fisher v. State Dep’t of Health, 125 Wn. App. 869, 106 P.3d 836 (Wash. Ct. App. 2005)

        • Procedural Posture: On appeal from lower court’s dismissal of plaintiff patient’s claims for violations of the Uniform Health Care Information Act (“UHCIA”), invasion of privacy (intrusion and publication of private facts) and outrage.

        • Law: invasion of privacy (publication of private facts); invasion of privacy (intrusion); UHCIA; outrage

        • Relevant Facts: In course of AG’s investigation of complaints about physician, it received private health care information about plaintiffs, which the office then “gratuitously” handed over to a private attorney. Plaintiffs sued for relief, alleging that the publication of their information violated the Washington HCIA and caused them distress and embarrassment such that they had viable tort claims.

        • Outcome: The court affirmed dismissal of all claims. The court found that the HCIA claim was properly dismissed because statute does not allow a private plaintiff to bring such claims against government agencies, e.g. AG’s office. Also, the court determined that invasion of privacy publication of private facts and intrusion claims were properly dismissed. The publication claim was properly dismissed because the disclosure of plaintiff’s information contained no other identifying information that would have connected the information to plaintiff. The intrusion claim was properly dismissed because the plaintiff could not establish element of intent. Finally, the court also found that the outrage claim was properly dismissed because plaintiffs could establish nothing more than negligence, when intentional wrongdoing (or at least recklessness) is required.

      2. Woo v. Fireman’s Fund Ins. Co., 128 Wn. App. 95, 114 P.3d 681 (Wash. Ct. App. 2005)

        • Procedural Posture: On appeal by insurer regarding partial summary judgment in favor of dentist finding that insurer had a duty to defend the lawsuit brought by the dentist’s employee/patient when she sued him for playing a practical joke on her while she was anesthetized.

        • Law: Insurance (duty to defend) centering on claims of invasion of privacy (false light; public disclosure of private facts); outrage

        • Relevant Facts: Dentist’s employee was also a patient. Dentist knew that she loved pigs and often made fun of her for it. When she was having her teeth extracted and flippers inserted before receiving permanent teeth, the dentist inserted boar’s tusks in her mouth while she was under anesthesia and then took photographs, which he gave her as a “practical joke.” Plaintiff employee quit her work at the dentist’s office and sued dentist for outrage, assault, battery, invasion of privacy (on two theories) as well as non-payment of overtime wages, retaliation, medical negligence, lack of informed consent and negligent infliction of emotional distress. Her husband and mother also sued for relief. The dentist settled with the employee out of court, but the insurer would not cover his costs, because it claimed that his wrongdoing was intentional and, as such, not covered under his policy. The dentist sued the insurer and the district court granted the dentist partial summary judgment. A jury then awarded him his fees, and costs, as well as the cost of the settlement. The insurer appealed.

        • Outcome: The appeals court overturned the lower court’s decision and determined that the insurer did not have a duty to defend because the damages resulted from intentional acts not required or consisting of a legitimate part of the properly rendered dental procedure. The court vacated the verdict and dismissed the case.

        • Special notes:

          • Although this case primarily involves insurance rather than the actual suit by the plaintiff employee, it demonstrates that a WMC victim could sue for invasion of privacy and outrage from a situation in which she is photographed in a compromising position without her knowledge or consent, and those photographs are circulated to the public.

          • The appeals court’s decision was actually overturned by the Washington Supreme Court following a rewriting of the statute regarding the proper amount of attorneys’ fees due in bad faith insurance actions.2 Plaintiff then won an $1 million-plus judgment from the trial court.3

    4. Practice Pointers

      • The Fisher court cited Restatement (Second) of Torts § 652(D) re publication of private facts.4

      • Because Washington does not recognize the interest in nondisclosure of personal information as a fundamental right, court applied the rational basis test to determine whether the disclosure served a legitimate state interest.

    1. Fisher, 125 Wn. App. 879-80. 

    2. Woo v. Fireman’s Fund Ins. Co., 161 Wn.2d 43, 114 P.3d 681 (2005) (reversing in part appeals court’s decision and reinstating plaintiff’s previous judgment). 

    3. See Woo v. Fireman’s Fund Ins. Co., 150 Wn. App. 158, 163, 208 P.3d 557 (Wash .Ct. App. 2009). 

    4. Fisher, 125 Wn. App at 879. 

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  4. Invasion of Privacy – Intrusion upon seclusion

    1. Introduction

      An intrusion claim is particularly appropriate for victims who were filmed or photographed without their knowledge or consent.

    2. Elements of a Claim

      To state a cause of action for intrusion, a plaintiff must allege: (1) Unauthorized intentional intrusion (physical or otherwise) upon the seclusion of an individual or his private affairs – the intrusion must be substantial, and it must identify the plaintiff; (2) The intrusion must be highly offensive and objectionable to an ordinary person; (3) The intrusion must relate to a private matter; and (4) The intrusion must cause anguish or suffering to the plaintiff.1

    3. Cases

      1. Fisher v. State Dep’t of Health, 125 Wn. App. 869, 106 P.3d 836 (Wash. Ct. App. 2005)

        • Procedural Posture: On appeal from lower court’s dismissal of plaintiff patient’s claims for violations of the Uniform Health Care Information Act, invasion of privacy (intrusion and publication of private facts) and outrage.

        • Law: invasion of privacy (publication of private facts); invasion of privacy (intrusion); Uniform Health Care Information Act (“UHCIA”); outrage

        • Relevant Facts: In course of AG’s investigation of complaints about physician, it received private health care information about plaintiffs, which the office then “gratuitously” handed over to a private attorney. Plaintiffs sued for relief, alleging that the publication of their information violated the Washington Health Care Information Act (“HCIA”) and caused them distress and embarrassment such that they had viable tort claims.

        • Outcome: The court affirmed the dismissal of all claims. The court found that the HCIA claim was properly dismissed because statute does not allow a private plaintiff to bring such claims against government agencies, e.g. AG’s office. Also, the court determined that invasion of privacy publication of private facts and intrusion claims were properly dismissed. The publication claim was properly dismissed because the disclosure of plaintiff’s information contained no other identifying information that would have connected the information to plaintiff. The intrusion claim was properly dismissed because the plaintiff could not establish element of intent. Finally, the court also found that the outrage claim was properly dismissed because plaintiffs could establish nothing more than negligence, when intentional wrongdoing (or at least recklessness) is required.

    4. Practice Pointers

      • Washington has a civil anti-harassment statute to protect against repeated invasions of a person’s privacy.2

      • One form of “intrusion” is electronic eavesdropping, which is specifically governed by RCW 9.73.030-.250 of the Washington Privacy Act.3

    1. See id. at 878-79. 

    2. RCW Chapter 10.14. See supra at Section C.2. 

    3. See supra at Section A.4. 

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  5. Invasion of Privacy – Appropriation or exploitation of a plaintiff’s name

    1. Introduction

      The victim of the online publication of intimate photos or videos may sue the user of the material if he or she can argue that the user is deriving a commercial benefit from the material’s publication.

    2. Elements of a Claim

      To state a cause of action for appropriation or exploitation of a plaintiff's name, a plaintiff must allege: (1) Appropriation of plaintiff’s identity or persona; and (2) For use or benefit of defendant (for profit or not for profit; liability on all who use or authorize use).1

    3. Cases

      1. Dale v. Coors Brewing Co., No. 48892-9-L, 113 Wn. App. 1017, 2002 WL 1898162 (Wash. Ct. App. Aug. 19, 2002)

        • Procedural Posture: On appeal from grant of summary judgment to defendant Coors Brewing Company on plaintiffs’ claims

        • Law: RCW 63.60.060; common law invasion of privacy (misappropriation); unfair competition

        • Relevant Facts: Plaintiff, a horse barrel racer, signed a contract in 1997 to endorse Coors Beer and had several photographs for her advertisements in Coors’ Point of Sale (“POS”) brochures, which were given to retailers and distributors, and no longer belonged to Coors after they were provided to third parties. Coors terminated Dale’s contract at the end of the year and promised to stop using her image by the end of the summer 1998. She claims she saw several items containing her photo after that point and sued for damages, alleging the unauthorized use of her image. The trial court found that no misappropriation had occurred because plaintiff had consented to the continued use of her image on the POS after the employment ended. There was evidence that she knew that the POS may still be used after her contract had expired: the evidence showed that she “knew the nature of the POS, knew how it was used and sold to distributors, and knew that it essentially was merchandise that no longer belonged to Coors once sold. Dale entered a service contract with Coors that was silent on the issue of POS and that placed no restrictions on the use of her photographs. At no point did Dale seek to limit the use of the existing POS or question what would happen to it, even as she acquired more information about her job, and the system of beer distribution and advertisement during the course of her employment.”2

        • Outcome: The court affirmed summary judgment for defendant and awarding defendant’s attorney’s fees for plaintiff’s suit because RCW 63.60.060(5) provides “that a party may recover attorney fees incurred in defending any claim under Washington’s misappropriation statute.”3 The court found that the evidence strongly supported the lower court’s determination that plaintiff knew what would happen with her images, etc. after the actual contract had expired.

    4. Practice Pointers

      As noted above, RCW 63.60.010 allows for the transfer of the right and exists for all persons, including those deceased before 1998 (when the original statute was passed. Similarly, at common law, the right was freely transferred by contract or testamentary instrument, as well as through the laws of intestacy, where there is no testamentary disposition.

    1. Dale, 2002 WL 1898162 at *4. 

    2. Id.at *5. 

    3. Id. at *6. 

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  6. Defamation

    1. Introduction

      If a sexual photo or video is published online, it may be accompanied by defamatory statements about the victim, likely through explicit material posted is accompanied by sound. However, it seems less likely that the statements would be oral than written statements (libel), e.g. comments accompanying the photo/video.

    2. Elements of a Claim

      To state a cause of action for defamation, a plaintiff must allege: (1) Falsity; (2) Unprivileged Communication – Liability requires that the defamation be communicated (“publication” of the defamation); (3) Fault; and (4) Damages.1

    3. Cases

      1. LaMon v. City of Westport, 44 Wn. App. 664, 723 P.2d 470 (Wash. Ct. App. 1986)

        • Procedural Posture: Plaintiffs appealed trial court’s determination that they had no claim for defamation or invasion of privacy where there was no viable “publication” of the information at issue.

        • Law: defamation; invasion of privacy

        • Relevant Facts: Plaintiffs, a husband and wife, sued regarding the placement of their litigation file in a public library. They alleged that the file contained defamatory statements made in context of judicial proceedings. The court dismissed the suit, determining that the fact that the file was available in the public library does not constitute a “publication” such that plaintiff had a claim for relief regarding defamation. The court also determined that plaintiffs’ invasion of privacy claim failed because plaintiffs did not explain what private affairs of theirs were actually intruded upon by having the litigation be publicly available. Finally, the court noted that the file materials were mainly a matter of public record, so the disclosure was not problematic.2

        • Outcome: The court affirmed the dismissal of plaintiffs’ claims.

        • Special Notes: The court also found that the plaintiffs had no cause of action for outrage or intentional infliction of emotional distress (“IIED”) because they failed to assign error to an earlier denial of motion to amend their complaint, thereby failing to preserve right to appeal that issue.

      2. Corey v. Pierce County, 154 Wn. App. 752, 225 P.3d 367 (Wash. Ct. App. 2010)

        • Procedural Posture: The county appealed a jury verdict on terminated employee’s claims for invasion of privacy, defamation, defamation by implication, false light, outrage, and breach of a contract

        • Law: invasion of privacy; defamation; defamation by implication; false light; outrage; breach of contract

        • Relevant Facts: Plaintiff assistant deputy prosecuting attorney sued the county prosecuting attorney and the county following her termination and the newspaper articles that followed, which stated that she was being investigated for improperly handling funds while she was an employee (in addition to other allegedly unsubstantiated allegations). At trial, plaintiff showed evidence that county and county prosecutor knew that plaintiff had not acted improperly at the time they spoke to the newspapers about allegations of improper handling of funds, etc. The court denied defendants’ motion for judgment as a matter of law, and the jury ruled for the plaintiff on several of her claims. On appeal, the court affirmed, holding that plaintiff had put forth sufficient evidence to support jury’s determination that defendants had acted with actual malice. The court also held that there’s no tort for negligent dissemination of unsubstantiated information; a plaintiff can bring a claim under the Public Records Act, but cannot obtain damages in a separate tort action.

        • Outcome: The court affirmed the trial court’s decision on fees, intentional torts, promissory estoppel claim, and evidentiary issues.

        • Special Notes: The court specifically determined that there is no separate tort claim in Washington for negligent dissemination of unsubstantiated information.3

      3. Auvil v. CBS 60 Minutes, 800 F. Supp. 928 (E.D. Wash. 1992)

        • Procedural Posture: Plaintiffs, a group of apple growers, moved for remand following removal, and defendants moved to dismiss or, alternatively, for summary judgment.

        • Law: defamation; product disparagement

        • Relevant Facts: Plaintiffs, a group of thousands of Washington apple growers, sued “60 Minutes” and local affiliates who showed the segment featuring investigation report concerning the use of allegedly carcinogenic chemicals (specifically, “Alar”) in the production of apples. The segment purportedly led to a major reduction in the price of and sales of Washington red apples, which were highlighted in the show.

        • Outcome: Granting in part and denying in part the parties’ motions. The court dismissed plaintiffs’ claim against affiliates because there was not a “hint. . . that the content of the segment would be defamatory,”4 given the higher threshold for media defendants. But the court also held that plaintiffs had a viable claim and a question of fact remained as to whether plaintiffs could establish scienter or recklessness required for their disparagement claim.

        • Special Notes:

          • Considering “group libel” claims and noting that in disparagement actions where several people are allegedly defamed, it is hard to show that the class claims could apply to each individual, so that: (1) communication can be reasonably understood to apply to each class member; or (2) the circumstances of the publication reasonably suggest that some particular member is targeted.5

          • Plaintiffs must point to evidence establishing defendants’ malice in publishing allegedly disparaging statement about their products.

          • In Washington, “a person who republishes defamatory statements made by another does not escape liability for the defamation even though the republisher is careful to ascribe the statements to the original speaker.”6 The major concern here is rights to free speech, thus the Court focused on the general rule that there was no “conduit liability.”7

      4. Brink v. Griffith, 65 Wn.2d 253, 396 P.2d 793 (1964)

        • Procedural Posture: Washington Supreme Court granted review of judgment notwithstanding the verdict for defendants on the defamation and invasion of privacy counts

        • Law: defamation by implication; false light invasion of privacy

        • Relevant Facts: Plaintiff, the town’s former municipal police officer, brought a claim against defendant mayor alleging dissemination of false information surrounding allegations that he was unfairly discharged from his position. Many town residents signed a petition to try to reinstate the plaintiff, but he claimed that the petition failed because the mayor spread false information about him. During a town meeting regarding the petition, the plaintiff alleges that the mayor publicized what appeared to be a “mug shot” of the plaintiff. Although it influenced peoples’ support of the mayor’s decision to fire plaintiff, the “mug shot” was actually a photographed copy of the plaintiff’s application to be a taxi cab driver. The nature of the mayor’s knowledge of the documents and the true nature of the documents was disputed.

        • Outcome: Plaintiffs’ allegations fail because they were “truthful.”

        • Special Notes: Importantly, the court determined that a plaintiff should not be able to recover both for invasion of privacy and defamation because that would allow them to recover twice for an identical injury (though entitled to allege the respective theories of recovery alternatively or in separate claims).8 The court remanded, determining that trial court did not err in granting defendants’ motion for a judgment notwithstanding the verdict.9

      5. Mohr v. Grant, 153 Wn.2d 812, 108 P.3d 768 (2005) (en banc)

        • Procedural Posture: Washington Supreme Court accepted review of plaintiffs’ appeal of court of appeals ruling denying defendants’ motion for summary judgment on plaintiffs’ claims of defamation

        • Law: defamation by implication

        • Relevant Facts: Plaintiffs, a store owner and his wife, sued a television station alleging that story gave false impression that they had abused a mentally disabled man, by kicking him off of their business property when he was trying to wash their windows. The Plaintiffs argued that the television station’s coverage intentionally omitted facts that were favorable to the plaintiff (about the man’s violent propensities, his threats to the man and his wife, etc.).

        • Outcome: The court reinstated the trial court judgment denying summary judgment because plaintiffs failed to put forth a prima facie case of defamation by implication where they could not show “falsity.”10

      6. Doe v. Gonzaga Univ., 143 Wn.2d 687, 24 P.3d 390 (2001) (en banc), portion rev’d on other grounds, Gonzaga Univ. v. Doe, 536 U.S. 273 (2002)

        • Procedural Posture: Court of appeals reversed jury verdict for plaintiff on the negligence, invasion of privacy, 42 U.S.C. § 1983 and breach of contract awards, and remanded for new trial on defamation claim, and for imposition of discovery sanctions. Washington Supreme Court reinstated jury verdict awarding damages for invasion of privacy and defamation for claims arising from investigation by University of alleged sexual misconduct of a candidate for a teaching certificate.

        • Law: defamation; negligence; invasion of privacy; Family Educational Rights and Privacy Act (“FERPA”) and § 1983

        • Relevant Facts: Gonzaga University and University employees denied teaching certificate to student, John Doe, following investigation into allegations made by others that he had sexually assaulted Jane Doe. University made no attempt to discuss alleged assault with John Doe and Jane Doe denied occurrence of the assault. The investigation was based on rumors from individuals who said Jane Doe had told them about the assaults. John Doe sued for relief under various common law and statutory claims and jury awarded him money damages and attorneys’ fees.

        • Outcome: The court reinstated the jury verdict awarding damages of $1.155 million to plaintiff. Court found that the University and its employees could be liable on defamation claim even though the statements in question were only made among university personnel. Court upheld jury finding that defendants were not privileged to make the defamatory statement where they were not acting in their capacity as employees.

      7. Alpine Indus., Computers, Inc. v. Cowles Publ’g Co., 114 Wn. App. 371, 57 P.3d 1178 (Wash. Ct. App. 2002)

        • Procedural Posture: Affirming summary judgment to the defendant publisher where the plaintiff failed to make out a claim of defamation

        • Law: defamation (fair reporting privilege to defamation)

        • Relevant Facts: Plaintiff computer retailer was found guilty of copyright infringement of major Microsoft products. A reporter wrote story on the violations, getting assistance from docket in court case brought against plaintiff. Prior to publishing the article, the reporter verified his statements against the memorandum and opinion issued by the court, requiring the defendant to pay $250 K to Microsoft plus attorneys’ fees for the copyright infringement. Plaintiff sued the publisher of the article, alleging defamation.

        • Outcome: The court affirmed summary judgment for publisher because reporter had not acted with actual malice, which was a required showing for defamation where there was a fair reporting privilege and an issue of public concern—copyright infringement in software retail.

      8. Clapp v. Olympic View Publ’g Co., LLC, 137 Wn. App. 470, 154 P.3d 230 (Wash. Ct. App. 2007)

        • Procedural Posture: Appeal of grant of motion to dismiss by defendant newspaper publisher.

        • Law: defamation (fair reporting privilege to defamation)

        • Relevant Facts: A newspaper reporter published story relating to petition for protection brought by former employees of plaintiff ranch owner; article accused ranch owner of encouraging former employees to commit perjury, and telling them that failing to lie on his behalf may cause them to lose their jobs. The reporter’s article summarized the content of the pleadings from plaintiffs’ petition, though it was later revealed that some of the former employee’s claims regarding plaintiff’s conduct had been exaggerated.

        • Outcome: The court affirmed the dismissal of claim because under the fair reporting privilege, report “fairly summarized” the court documents, and the reporter need not report on the truth or falsity of the petition’s statements themselves.

        • Special Notes: The test for the fair reporting privilege is whether the article “fairly summarizes” pleadings as its purported to do: “Our role in applying the fair reporting privilege is simply to ask whether the article in general fairly summarizes the court documents.”11

      9. Hoppe v. Hearst Corp., 53 Wn. App. 668, 770 P.2d 203 (Wash. Ct. App. 1989)

        • Procedural Posture: On motion for summary judgment by defendant newspaper in case arising from publication of a humorous satirical article about a character modeled after plaintiff.

        • Law: defamation; outrage; false light invasion of privacy; intentional infliction of emotional distress

        • Relevant Facts: While engaged in a re-election bid, plaintiff, a public official, was rumored to have spent public funds to hire private detectives to trail an employee who had spoken out against plaintiff’s office’s methods. A newspaper columnist known for satirical articles published an article based on the plaintiff, though using pseudonyms, which poked fun at the rumors. Plaintiff sued the newspaper alleging he was damaged by the column.

        • Outcome: The court affirmed summary judgment for defendant because plaintiff failed to show that any defamatory statements were made in that context and because plaintiff failed to show actual malice, which is required of public figures for outrage, intentional or negligent infliction of emotional distress or false light privacy claims. Where plaintiff could not put forth evidence that the column implied defamatory facts, failed to establish a prima facie case of malice and other claims were properly dismissed.

        • Special Notes:

          • Although a humorous and satirical statement implying defamatory facts may be actionable in tort, court considers context: the meaning of the entire article in which statement is found; the nature of medium in which article is published; and whether the statement could reasonably (in context) be understood as describing actual facts about plaintiff.

          • For public figures, a different standard for determining malice in the context of satirical expression: “whether the author intended, or recklessly failed to anticipate, that readers would construe the publication as a statement of defamatory facts.”12

    4. Practice Pointers

      • Tort overlaps with false light invasion of privacy. But while the purpose of false light invasion of privacy is to recover for injured feelings and mental suffering, the purpose of defamation is mainly concerned with compensating injured party for damage to his reputation. Notably, although a plaintiff can bring both a false light privacy claim and a defamation claim, only one recovery is permitted.13

      • There is also a claim for “defamation by implication” which occurs when “the defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts.”14 (citation omitted). Plaintiff must prove all the elements of defamation to establish a claim for defamation by implication.15

      • There is a dispute regarding whether Washington recognizes a claim of defamation through omission—where the absence of information suggests false information.16

      • Washington affords news media defendants a privilege for reporting on statements contained in official proceedings and records, even if some material is defamatory.17

      • Washington courts also rely to some degree of Restatement (Second) of Torts, which states that “[t]he publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgment of the occurrence reported.”18

    1. LaMon v. City of Westport, 44 Wn. App. 664, 667, 723 P.2d 470 (Wash. Ct. App. 1986). 

    2. Id. at 669. 

    3. Corey, 154 Wn. App. at 766-67. 

    4. Auvil, 800 F. Supp. at 932. 

    5. Id. at 936. 

    6. Id. at 931. 

    7. Id. at 931-32. 

    8. Brink, 65 Wash. 2d at 259. 

    9. Id. 

    10. Mohr v. Grant, 153 Wn.2d at 829-30 

    11. Clapp, 137 Wn. App. at 477. 

    12. Hoppe, 53 Wn. App. at 677. 

    13. Eastwood, 106 Wn.2d at 471. 

    14. Mohr, 153 Wn.2d at 823 (citation omitted). 

    15. Id. at 827-28. 

    16. See id. at 827. 

    17. See, e.g., Alpine Indus., 114 Wn. App. at 371; Clapp, 137 Wn. App. at 470. 

    18. Restatement (Second) of Torts § 611. 

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  7. 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

      To state a cause of action for IIED, a plaintiff must allege: (1) Intentional or reckless infliction of emotional distress; (2) By outrageous and extreme conduct; and (3) Resulting in severe emotional distress to the plaintiff.1

    3. Cases2

    4. Practice Pointers

      • Many Washington courts consider IIED and outrage claims to be “one in the same,” and view them as one single cause of action.3

      • This tort has never been successfully alleged against media defendants.4

      • Currently, there is a dispute regarding whether the statute of limitations is two years or three years.5 Regardless, the statute of limitations would “most likely” not run until the injured party knew, or in the exercise of reasonable care, should have discovered, the factual bases of the claim.6

    1. Snyder v. Med. Serv. Corp. of E. Wash., 145 Wn.2d 233, 250, 35 P.3d 1158 (2001) (en banc). 

    2. See “Outrage” cases. 

    3. See, e.g., Snyder v. Med. Serv. Corp. of E. Wash., 98 Wn. App. 315, 321, 988 P.2d 1023 (Wash. Ct. App. 1999). 

    4. See, e.g., Hoppe, 53 Wn. App. at 668 (satirical column about county assessor would not support a claim for intentional infliction of emotional distress absent a showing of actual malice). 

    5. See Doe v. Finch, 133 Wn.2d 96, 942 P.2d 359 (1997). 

    6. See Doe I v. State Dep’t of Soc. and Health Serv., No. 34357-6-II, 2007 WL 1476341 at *7-9 (Wash. Ct. App. May 22, 2007). 

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  8. Outrage

    1. Introduction

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

    2. Elements of a Claim

      To state a cause of action for outrage, a plaintiff must allege: (1) Extreme and outrageous conduct; (2) Intentional or reckless infliction of emotional distress; and (3) Actual result to the plaintiff of severe emotional distress.1

    3. Cases

      1. Doe I v. State Dep’t of Soc. and Health Serv., No. 34357-6-II, 2007 WL 1476341 (Wash. Ct. App. May 22, 2007)

        • Procedural Posture: Plaintiff appealed from summary judgment order dismissing suit against defendant arising from incidents of sexual harassment by a former colleague, who was terminated for his actions as to several different women.

        • Law: employment-discrimination claims; outrage; invasion of privacy

        • Relevant Facts: Plaintiff brought claims against defendant arising from alleged sexual harassment by former employee of defendant, occurring from 1999 through 2003. The statute of limitations for claims had run because she would have known as far back as 1999 that the circumstances met the burden for establishing a tort of outrage—she had attended employer’s sexual harassment training and during that training, she had confirmed her understanding of the sexual harassment policies at issue.

        • Outcome: The court affirmed the dismissal of claim due to the running of the statute of limitations for plaintiffs’ claims.

      2. Birklid v. Boeing Co., 127 Wn.2d 853, 904 P.2d 278 (1995) (en banc)

        • Procedural Posture: Certified questions from Ninth Circuit to en banc panel of the Washington Supreme Court regarding whether claims of outrage and negligent infliction of emotional distress (“NIED”) by employees who were allegedly exposed to toxic substances at work could lie under the Washington Industrial Insurance Act (IIA): (1) Whether the evidence produced by the plaintiffs in their response to the motion for summary judgment could, under Washington law, justify a jury finding the “deliberate intention” exception specified in RCW 51.23.020, and, if so, the requirements of Washington law to permit such a finding? (2) Whether the evidence produced by the plaintiffs in their response to motion for summary judgment could, under Washington law, justify a finding of “outrageous conduct” that would avoid the preclusion of RCW 51.04.010, and, if so, what are the requirements of Washington law to permit such a finding?

        • Law: outrage; IIED/NIED; Washington Industrial Insurance Act (“IIA”) (RCW 51.24.020, “Action against employer for intentional injury”)

        • Relevant Facts: In the 1980s, Boeing began to use a new woven fiberglass cloth impregnated with phenol-formaldehyde resin, and Boeing workers began to experience health-related problems because of the new material. Boeing ignored requests for increased ventilation because of costs, and several workers brought suit alleging misconduct constituting the tort of outrage by Boeing, including claims that Boeing removed labels on the chemicals, and denied the employees access to the material safety data sheets, as well as allegations that Boeing management harassed employees who requested protective equipment or asked for medical treatment for ailments arising from their exposure to the resin. Washington’s IIA, a no-fault compensation system for injuries on the job, bars all suits except for allegations of claims arising from an employer’s deliberate misconduct. The Court rejected “substantial certainty” line of cases adopted by other courts, and held that a plaintiff must show that the employer had “actual knowledge that an injury was certain to occur and willfully disregarded that knowledge.”2 The Court explained that a tort of outrage could lie even in a case where the injury alleged was not a “separate physical injury” (but rather, an injury that arose because of plaintiffs’ exposure to toxic substances in the workplace), as long as the plaintiff can show intentional infliction of emotional distress (rather than merely negligent or reckless infliction of emotional distress).3

        • Outcome: Court held the plaintiffs put forth enough evidence to show that the acts alleged go beyond gross negligence and reach “willful disregard of actual knowledge by the employer of continuing injuries to employees.”4 The Court also held that plaintiff put forth enough evidence to permit a jury to determine whether Boeing’s conduct constituted the tort of outrage, but noting that “[t]o the extent the plaintiffs allege and can prove only negligent or reckless infliction of emotional distress, the exclusive remedy provision of the Industrial Insurance Act bars such claims.”5

        • Special notes: The Washington IIA is interpreted quite narrowly to limit employees from recovering for all but employers’ intentional misconduct. Other states’ corresponding insurance statutes have been interpreted more broadly, however, and they allow recovery for some employer negligence—e.g. when it was “substantially certain” that employees would be harmed by the conduct at issue.6

      3. Sayers v. Margera, No. C05-5541 RJB, 2006 WL 2192378 (W.D. Wash. Aug. 1, 2006)

        • Procedural Posture: Court denied defendants’ motions for summary judgment, determining that plaintiffs’ claims should progress to a jury trial.

        • Law: battery; invasion of privacy; outrage; negligent infliction of emotional distress

        • Relevant Facts: Defendant allegedly committed battery against plaintiffs by shoving them in a parking lot, starting a fight. Defendant was the producer and star of the show “Viva la Bam” on MTV. Plaintiffs contended that defendants had conspired to start the incident and them capture it on film to use in a movie, which they later saw in one of the defendant’s movies. Court considered defendants’ arguments that the statute of limitations had run because the incident had occurred years prior. Court also considered defendants’ arguments that the court should dismiss plaintiffs’ other claims.

        • Outcome: The court denied summary judgment and allowed claims to proceed to a trial because plaintiffs had put forth enough evidence of a battery, invasion of privacy, and outrage where a reasonable juror could find in their favor. The court determined that if the claims were as plaintiffs alleged, evidence of reckless disregard of severe emotional distress plaintiffs could have feared under the circumstances.

          Special Notes: A plaintiff must establish “severe infliction of emotional distress” before he can establish outrage.7

      4. Brower v. Ackerley, 88 Wn. App. 87, 943 P.2d 1141 (Wash. Ct. App. 1997)

        • Procedural Posture: Plaintiff appealed from lower court grant of summary judgment to defendants on claims of assault, negligent infliction of emotional distress, and outrage or intentional infliction of emotional distress.

        • Law: negligent infliction of emotional distress; outrage; intentional infliction of emotional distress

        • Relevant Facts: Plaintiff activist protested defendants’ improper billboards to local government, and began receiving several threatening phone calls, which were eventually linked to defendants. Plaintiff sued for relief, alleging that the phone calls had frightened him greatly, and caused him severe emotional distress and damages.

        • Outcome: The court determined that the assault claim had been properly dismissed because the phone calls referred to danger that was not “imminent,” such that it would qualify as “assault.” The court also determined that the NIED claim was properly dismissed because plaintiff did not manifest his distress through objective symptomatology—he was never under a doctor’s care, he never required medication, etc. However, the court reversed the dismissal of plaintiff’s outrage claim on summary judgment, asserting that there was sufficient evidence presented to take that claim to a jury. The court found that it was possible that a jury could conclude that the incidents of telephone harassment were “extreme and outrageous” such that could support a cause of action for outrage by plaintiff.

        • Special Notes: For tort of outrage, court referred to Restatement (Second) of Torts § 469 (“Intentional infliction of emotional distress), cmts j and k.8

      5. Doe v. Finch, 133 Wn.2d 96, 942 P.2d 359 (1997) (en banc)

        • Procedural Posture: Appeal from lower court’s reversal of trial court’s decision to grant summary judgment for defendant psychologist.

        • Law: outrage; malpractice

        • Relevant Facts: Plaintiff and his wife underwent psychiatric counseling with defendant psychiatrist for several years before their relationship ended in divorce. Husband plaintiff wrote a letter to defendant doctor accusing him of having an inappropriate relationship with plaintiff’s wife and of having a hand in ending the relationship (which resulted in a divorce). Several years later, defendant admitted to having affair with clients (among then, plaintiff’s wife). Court reversed and determined that on remand, the court will have to determine whether the discovery rule applies and when the plaintiff should have reasonably discovered the defendant’s malpractice at the time of the occurrence.

        • Outcome: The court affirmed the lower court’s decision to reverse dismissal of outrage/malpractice claims and allow plaintiff to pursue them on remand.

        • Special Notes: The discovery rule applies to outrage claim and question of fact as to when the plaintiff “discovered” the inappropriate actions by the defendant doctor, e.g. when he could have known to file suit. Concurrence re: discovery rule, and dissent in which dissenting Justices argue that the plaintiff’s letter demonstrated that he had discovered the inappropriate behavior long before he filed suit.

    4. Practice Pointers

      • Washington appeals court considered IIED and outrage claims as “one in the same,” and viewed them as one single cause of action.9

    1. Id. at *7. 

    2. Birklid, 127 Wn.2d at 865. 

    3. Id. 

    4. Id. 

    5. Id. at 875. 

    6. Id. at 864-65 (noting that Michigan, North Carolina, Ohio, West Virginia, and Louisiana all interpret their respective insurance statutes more broadly, allowing a plaintiff a potential recovery when there was a “substantial certainty” of injury). 

    7. Sayers, 2006 WL 2192378 at *6. 

    8. Brower, 88 Wn. App. at 99-100, n. 31-32. 

    9. Snyder, 98 Wn. App. at 321. 

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

    1. Introduction

      The victim of the 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 publication caused the victim to suffer severe emotional distress.

    2. Elements of a Claim

      To state a cause of action for NIED, a plaintiff must allege: (1) Negligent conduct (no extreme or outrageous conduct required); (2) Proximate cause; and (3) Some evidence of objective symptoms of distress (severe emotional distress unnecessary, but plaintiff must provide some evidence of symptoms).1

    3. Cases

      1. Lopez v. City of Seattle, No. 49913-1-1, 2002 WL 31106454 (Wash. Ct. App. Sept. 23, 2002)

        • Procedural Posture: Affirming summary judgment dismissal of claims two female plaintiffs brought against the City arising from gossip in the workplace regarding allegations that one of the plaintiffs may have been abusing the other.

        • Law: libel; slander; negligent infliction of emotional distress; invasion of privacy

        • Relevant Facts: Plaintiffs, two females, who were roommates and were believed to be an aunt and a niece, sued their mutual employer after they were made aware of rumors circulating about their relationship. The rumors arose following plaintiffs’ colleague’s discovery of a letter regarding a potential abusive relationship received by plaintiffs’ colleague, which was thought to be written by the younger plaintiff about the other plaintiff. The letter suggested that the older woman was abusing her younger roommate. Plaintiffs claimed that the false rumors being spread by their fellow employees about the women’s relationship caused them emotional distress and damages.

        • Outcome: The court affirmed the summary judgment dismissal of claims by plaintiffs because there was no evidence that the city officials had made the statements about which plaintiffs complained. Also, the city had no duty to prevent gossip by its employees, and as such, could not be liable for failing to prevent the rumors of which plaintiffs complained. Also, the invasion of privacy claim failed where the details of the rumors had been revealed in a non-private disturbing letter by one of the plaintiffs, making it reasonable for another employee to contact a supervisor about the plaintiffs’ relationship.

        • Special Notes: The dominant feature of this claim is the “emotional injury” a plaintiff suffers.2

      2. Hunsley v. Giard, 87 Wn.2d 424, 553 P.2d 1096 (1976) (en banc)

        • Procedural Posture: Plaintiff’s appeal from denial of claim of negligent infliction of emotional distress resulting from accident occurring in her home, which did not directly harm her.

        • Law: negligent infliction of emotional distress

        • Relevant Facts: Plaintiff was sitting at home, and her husband was giving a piano lesson in an adjoining room when she heard a loud crash and saw her neighbor had driven her town-car into plaintiff’s home, causing severe damage. Shortly after the accident, plaintiff began to develop heart issues, and was diagnosed as having “heart stress,” which she claims was proximately caused by the accident. The Washington Supreme Court analyzed the various theories of damages for emotional disturbances in the absence of physical impact/other actionable wrong, and reversed/remanded for trial, deeming these issues appropriate for a jury.

        • Outcome: The court reversed and remanded for trial so jury could rule on the factual analyses: e.g. foreseeability of accident; threatened danger; foreseeability that plaintiff would be endangered by defendant’s conduct; and the reasonableness of plaintiff’s reaction (among other things).

        • Special Notes: The theories on this issue have varied for years, but court “decline[d] to draw an absolute boundary around the class of persons whose peril may stimulate the mental distress. This usually will be a jury question bearing on the reasonable reaction to the event unless the court can conclude as a matter of law that the reaction was unreasonable.”3

    1. Hunsley v. Giard, 87 Wn.2d 424, 427-38, 553 P.2d 1096 (1976) (en banc). 

    2. Lopez, 2002 WL 31106454 at *4. 

    3. Hunsley, 87 Wn.2d at 436. 

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  10. Injurious Falsehood

    1. Introduction

      The victim of the nonconsensual online publication of intimate photographs or videos may bring a common law action for false light if he or she can argue that the material makes it seem that he or she is something he or she is not (for example: that he or she aspires to be a porn star or that he or she is an exhibitionist). He or she must suffer damages to her pecuniary interests.

    2. Elements of a Claim

      To state a cause of action for injurious falsehood, a plaintiff must allege: (1) Falsity; (2) Injury; (3) Publication; (4) Of and concerning plaintiff; (5) Special damages, e.g. injury to pecuniary interests (6) Malice. Malice is defined as: (a) Intent to cause harm; (b) Recklessness, knowledge or falsity or similar fault in relation to truth of publication; or (c) Spite or ill-will.1

    3. Cases

      Research is ongoing. Only three cases cited “injurious falsehood,” and none were relevant factually relevant or analogous to WMC’s target situations.

    1. Media Law Resource Center, Inc., 50-State Survey: Media Privacy and Related Law 2009-10 at 1588-89 (June 2009). 

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  11. Interference with Contract/Prospective Economic Advantage

    1. Introduction

      The victim of the nonconsensual online publication of intimate photographs or videos may bring a claim under the common law tort of intentional interference with prospective economic advantage in situations where the material’s publication has interfered with the victim’s employment or ability to earn a living.

    2. Text of the Statute(s)

      To state a cause of action for intentional interference with prospective economic advantage, a plaintiff must allege: (1) Existence of a valid contract or business expectancy; (2) Knowledge by defendant of the contract or business expectancy; (3) Intentional and improper and unjustified interference to induce nonperformance; and (4) Nonperformance of contract damages plaintiff.1

    3. Cases

      1. Caruso v. Local Union No. 690, 100 Wn.2d 343, 670 P.2d 240 (1983) (en banc)

        • Procedural Posture: Appeal of a judgment in favor of plaintiff on defamation claim

        • Law: tortious business interference

        • Relevant Facts: Plaintiff business owner sued defendant union alleging interference with business expectancy and defamation arising from published articles encouraging union members to boycott plaintiff’s business. A dispute arose after union members had blocked plaintiff’s parking lot with their trucks, and plaintiff had had the union members’ vehicles towed when he could not get them to move them on his own.

        • Outcome: Holding that the union’s publication of articles requesting that people not patronize plaintiffs’ business establishment were constitutionally protected and did not give rise to liability for the tort of business interference—the allegations regarding falsity of the statements in the articles were better dealt with through defamation; remanding defamation claims for new trial because of errors in jury instructions regarding the definition of “libelous per se” and allowing jury to presume damages where liability was based on negligence rather than actual malice.

        • Special Notes:

          • Where plaintiff is a private individual and there is not an issue of public concern, a “negligence” standard of fault applies rather than an “actual malice” standard.2

          • “Libel per se” means no proof of special damages is necessary, but whether situation is libelous per se should be a question of fact for the jury.3

    4. Calbom v. Knudtzon, 65 Wn.2d 157, 396 P.2d 148 (1965)

      • Procedural Posture: Defendants appeal jury finding that defendants, accountants and tax advisors, had tortiously interfered with plaintiff attorney’s relationship with widow to serve as counsel to probate her husband’s estate.

      • Law: tortious interference with contractual relations/business expectancies

      • Relevant Facts: Plaintiff lawyer had longstanding relationship with husband of widow, and when he passed away, the lawyer made arrangements to be a probate attorney for estate (with widow’s consent). While he was on vacation, defendants, tax advisors to the widow and her deceased husband, advised her to hire other counsel to probate the estate. Plaintiff sued defendants for the attorneys’ fees associated with the work he had already performed and the fees expected from his continuing work.

      • Outcome: The court affirmed the judgment for plaintiff finding that defendants intentionally interfered with his attorney-client relationship with widow.

      • Special Notes: Court noted that “although knowledge of the existence of the business relationship in issue is an essential element in establishing liability for interference therewith, it is sufficient if the evidence reveals that the alleged interferer had knowledge of facts giving rise to the existence of the relationship. It is not necessary that the interferer understand the legal significance of such facts.”4

  12. Practice Pointers

    • Courts have noted that where defamation and tortious interference claims arise from the same conduct, both claims are subject to the defense of privilege, e.g. attempts to persuade others to action are clearly protected by the Constitution.5

    • Statute of limitations (in non-media cases) is three years.6

    1. See Caruso v. Local Union No. 690, 100 Wn.2d 343, 348-49, 670 P.2d 240 (1983) (en banc). 

    2. Id. at 352. 

    3. Id. at 354. 

    4. Calbom, 65 Wn.2d at 165 (citing Restatement, Torts § 755, cmt. e)). 

    5. See Aitken v. Reed, 89 Wn. App. 474, 949 P.2d 441 (Wash. Ct. App. 1988). 

    6. City of Seattle v. Blume, 134 Wn.2d 243, 947 P.2d 223 (1997). 

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