Alaska: Common Law

  1. Privacy Torts

    1. Introduction

      Alaska courts have recognized the common law right to privacy causes of action for intrusion upon seclusion and false light, but there is very little appellate analysis.1 However, Alaska does follow the Restatement formulation, and thus case law in other jurisdictions is likely persuasive.

      No Alaska cases have assessed the privacy torts of public disclosure of public facts or appropriation of identity.

    2. Elements

      1. Intrusion Upon Seclusion

        Alaska follows the Restatement (Second) of Torts § 652B: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”

        Consistent with other states, Alaska requires that the plaintiff show both an objective and subjective expectation of privacy and that the intrusion was both objectively and subjectively unreasonable.2 In other words, the plaintiff must believe her privacy was unreasonably invaded, and the jury must agree her belief is reasonable.

      2. False Light

        Alaska follows the Restatement (Second) of Torts § 652E: “One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of privacy, if

        (a) the false light in which the other was placed would be highly offensive to a reasonable person, and

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

    3. Cases

      1. Wal-Mart v. Stewart 990 P.2d 626 (Alaska 1999)

        • Procedural Posture: Wal-Mart appealed trial court verdict for plaintiff on claims for invasion of privacy and intentional infliction of emotional distress.

        • Law: Intrusion Upon Seclusion
        • Facts: Plaintiff worked at two fast food restaurants located within the Anchorage Wal-Mart. Wal-Mart had a policy of searching employees leaving the premises at closing to ensure no merchandise was in their bags. Plaintiff claimed that he, as an African American man, had been targeted for particularly intense and unreasonable searches under this policy. A particular security guard would daily request that Plaintiff remove everything from his bag and go through it in detail, while letting others through without inspection. The jury agreed in part and awarded Plaintiff $7,800 plus $50,000 in punitive damages.

        • Outcome: The Supreme Court affirmed the verdict. The analysis on intrusion upon seclusion focused on what constitutes a “highly offensive” intrusion. The Court said that “highly offensive” could mean that the searches were conducted in an unreasonable manner or for an illegal reason. The evidence supported the jury’s finding on either count, as the guard’s actions were abrupt and obnoxious and testimony supported that only Plaintiff and other minority employees were targeted for such conduct. Wal-Mart also argued the searches were consensual, but the court found that the evidence supported the finding that the consent was, at best, under duress, and that implied consent to a legal search policy did not extend to the guard’s conduct.4

    4. Practice Pointers

      No false light cases at this time. Although State v. Carpenter acknowledged and described the false light cause of action, it summarily rejected its application to a situation involving opinion, as opposed to fact.5

    1. See Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d at 1137. There is only one subsequent appellate case on the issue, Wal-Mart.
    2. Greywolf v. Carroll 151 P.3d 1234, 1245-46 (Alaska 2007).
    3. State v. Carpenter, 171 P.2d at 53 n.21.
    4. Wal-Mart v. Stewart, 990 P.2d at 632-634.
    5. Id. at 52-53.
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  2. Defamation

    1. Introduction

      A communication is defamatory if it tends to harm the reputation of another so as to lower him or her in the estimation of the community or to deter third persons from associating with him or her.1 Although Alaska has no published cases that deal with nonconsensual publication or distribution of sexually explicit images, at least one case holds that statements that impute serious sexual misconduct are defamatory per se—the parameters of “serious sexual misconduct,” however, are undefined.

    2. Elements

      Defamation requires: (1) a false and defamatory statement; (2) an unprivileged publication to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) the existence of either “per se” actionability or special harm.2

    3. Cases

      1. French v. Jadon, Inc. 911 P.2d 20 (Alaska 1996).

        • Procedural Posture: Plaintiff’s appeal from lower court granting summary judgment on defamation claim, among other claims.

        • Law: Employment, tangentially including defamation.

        • Facts: Plaintiff brought several claims, most of which had to do with wrongful termination and sexual harassment.3 But she also brought defamation claims, alleging that her former employer referred to her using “degrading words,” and told her boyfriend that she engaged in sexual relations with other employees and traded sex for drugs.4

        • Outcome: The Alaska Supreme Court held that the superior court erred in granting summary judgment on the defamation claim.5 The Court held that statements alleging serious sexual misconduct is defamatory per se.6 “One who publishes a slander that imputes serious sexual misconduct to another is subject to liability to the other without proof of special harm.”7

      2. State v. Carpenter, 171 P.3d 41 (Alaska 2007).

        • Procedural Posture: Plaintiff’s appeal of lower court’s order granting summary judgment on defamation, false light invasion of privacy, and negligent and intentional infliction of emotional distress. Defendant’s appeal on spoliation damages.

        • Law: Defamation, invasion of privacy, negligent and intentional infliction of emotional distress

        • Facts: Plaintiff complained to the local Juneau radio station and its advertisers about a national syndicated radio show. The Juneau station filed the complaint, and around the same time, cancelled the show.8 The complaint was anonymously forwarded to the syndicated radio show, and, on the last day the show aired in Juneau, the host identified plaintiff, made sexually explicit remarks about her, and encouraged listeners to do the same.9

        • Outcome: The Alaska Supreme Court held that offensive statements about a person’s “sexual habits” were not defamatory when no reasonable person would believe that the persons making those statements was purporting to reveal actual, known facts about the plaintiff.10 Despite plaintiff reporting that she “felt humiliated and sexually violated,” the Court emphasized that “pure expressions of opinion, not implied or stated assertions” of false fact,” were not actionable as a defamation claim.11

    4. Practice Pointers

      To the extent a victim can demonstrate that a defamatory statement alleges “serious sexual misconduct,” and assuming the other defamation elements are proved, she or he will have established defamation per se.12 Defamatory per se statements permit a plaintiff to proceed on a defamation claim without proving special damages.13 Unfortunately, the Jones case and subsequent cases do not provide much guidance as to what constitutes “serious sexual misconduct.”14 Equating any defamatory statements to criminal activity as defined by Alaska statute could prove useful.15

      When a defendant with whom a victim has had a prior relationship makes sexually explicit remarks about him or her, victim could use Carpenter and distinguish it on the grounds that a reasonable person would believe the defendant’s defamatory statements revealed actual and known facts about a plaintiff.

      Both punitive and compensatory damages are available to defamed victims.

    1. French v. Jadon, Inc., 911 P.2d 20, 32 (Alaska 1996).
    2. Id.
    3. Id. at 22-23.
    4. Id. at 32.
    5. Id. at 33.
    6. Id.
    7. Id. (citing Restatement (Second) of Torts § 574 (1977)); see also City of Fairbanks v. Rice, 20 P.3d 1097, 1107 (Alaska 2000) (“We have previously recognized that imputation of sexual misconduct is defamatory per se. The superior court concluded that allegations of marital infidelity were allegations of serious sexual misconduct. We agree.”).
    8. Id. at 48.
    9. Id. at 48-49.
    10. Id. at 52.
    11. Id. at 51.
    12. See Jones, 911 P.2d at 32.
    13. Id. at 33.
    14. See id. at 32 (noting sexual misconduct that amounts to criminal activity is “serious sexual misconduct”).
    15. See id.
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  3. Conversion

    1. Introduction

      Conversion1is “an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.”2 Conversion is also likened to negligent bailment which may prove to be a useful claim to victims who share access to private photos or videos with a defendant.

    2. Elements

      To prevail on a claim of conversion, the plaintiff must prove: (1) “it had a possessory interest in the property,” (2) that the defendant “intentionally interfered with the plaintiff’s possession,” and (3) that the defendant’s “acts were the legal cause of the plaintiff’s loss of property.”3

    3. Cases

      1. Silvers v. Silvers, 999 P.2d 786, 793 (Alaska 2000).

        • Procedural Posture: Plaintiff’s appeal of lower court’s entry of judgment for plaintiff’s conversion of defendant’s property.

        • Law: Contracts, conversion

        • Facts: A mother sued her son for conversion after it appeared that numerous items that she stored at his residence disappeared.4 The mother discovered her missing items after her son sold his residence and demanded his mother remove her items.5 The mother initially filed a lien against her son for other money advances she made to her son that he did not pay back.6 In response to her son filing a complaint to expunge the lien, the mother counterclaimed for repayment of her funds and conversion of her property.7

        • Outcome: The Alaska Supreme Court held that a claim of conversion could be found where a plaintiff “delivered the property to the care of the defendant and that the defendant refused a timely request to return the property.”8 The Court likened her conversion claim to one for negligent bailment which holds the bailee “liable for any loss caused by his failure to exercise reasonable care.”9 In a conversion or negligent bailment case, once a plaintiff proves a prima facie case, the burden shifts to the defendant who must establish that the “loss did not occur through his negligence or . . . that he exercised a degree of care sufficient to rebut the presumption of it.”10 Although the Court found that the trial did not err in finding the mother made a prima facie case for conversion, the case was remanded because the son was not given a “fair opportunity to make an explanation.”11

    4. Practice Pointer

      If the victim owns the copyright in the photos at issue, conversion is likely not available, as the Alaska Supreme Court has suggested that the Copyright Act preempts state common law claims aimed at controlling copyrighted works.12

    1. K & K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702, 717 (Alaska 2003).
    2. Silvers v. Silvers, 999 P.3d 786, 793 (Alaska 2000).
    3. K & K Recycling, 80 P.3d at 717.
    4. Id. at 788.
    5. Id.
    6. Id.
    7. Id.
    8. Silvers, 999 P.3d at 793.
    9. Id. at 793.
    10. Id. at 794.
    11. Id.
    12. See LLC v. Cross, 357 P.3d 805, 812 n.22 (Alaska 2015) (citing cases finding preemption of conversion claim in support of more general discussion about preemption of plaintiff’s claims).
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  4. Intentional Infliction of Emotional Distress

    1. Introduction

      Victims of the nonconsensual disclosure, publication, and/or distribution of sexually explicit images may pursue an intentional infliction of emotional distress claim; however, there is not currently any precedent that would be relevant to a nonconsensual porn fact pattern. Notwithstanding the lack of case law, an intentional infliction of emotional distress may be useful where a person repeatedly harasses a victim and does so using irrational and bizarre behavior.

    2. Elements

      To establish a prima facie case of intentional infliction of emotional distress, the plaintiff must prove that the defendant through “extreme or outrageous conduct” intentionally or recklessly caused severe emotional distress or bodily harm to another.1 Liability for intentional infliction of emotional distress can only be found where the conduct is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”2

    3. Cases

      1. Lybrand v. Trask, 31 P.3d 801 (Alaska 2001).

        • Procedural Posture: Plaintiff’s appeal of lower court’s dismissal of intentional infliction of emotional distress claim.

        • Law: Intentional infliction of emotional distress

        • Facts: In retaliation to homeowners whose home repair debris ended up on neighbor’s property, neighbor wrote large words and symbols on their roof directed at homeowners.3 Neighbor wrote the following phrases on her roof, along with a symbol of a large crucifix: “DO UNTO OTHERS,” “LUK 6:31 MAT 7:12 19:19,” “LOVE THY NEIGHBOR,” “BY THEIR (DEEDS) YE SHALL KNOW THEM,” “MAT 7:20,” and “YOURE WELCOME GEORGE L.”4 Plaintiffs-homeowners claimed emotional distress and damages related to reduced property value as a result of the rooftop messages.5

        • Outcome: The Alaska Supreme Court affirmed the lower court’s dismissal of the intentional infliction of emotion distress claims.6 In doing so, the Court held that plaintiffs-homeowners failed to prove that the neighbor’s conduct was “extreme and outrageous.”7 The Court noted that the Lybrand case could be distinguished from other cases where a trial court was found to have abused its discretion in dismissing an intentional infliction of emotional distress because “the disputed conduct in those cases involved multiple, concerted efforts to seriously damage the well-being and reputation of the plaintiff.”8 The Court also noted, however, that an “isolated incident or series of uncoordinated events may also be sufficiently egregious to satisfy the outrageousness threshold” required for intentional infliction of emotional distress claims.9

      2. Oaksmith v. Brusich, 774 P.2d 191 (Alaska 1989).

        • Procedural Posture: Plaintiff’s appeal of lower court’s damage award for intentional infliction of emotion distress and defendant’s cross-appeal of lower court’s finding liability for intentional infliction of emotional distress.

        • Law: Intentional infliction of emotional distress

        • Facts: Plaintiff-daughter purchased marina property from defendant-father.10 Defendant assisted plaintiff with marina operations, but disagreed with plaintiff’s management and operation of marina.11 Defendant began referring to plaintiff and plaintiff’s husband “using profane and insulting language in front of customers and employees,” posted “for sale” signs “to make people falsely believe that the marina was for sale or going out of business,” tried to interfere with marina permitting from the federal government, threw “temper tantrums” at the marina, and caused an intentional vehicle collision with plaintiff.12 Plaintiff testified she was “terrified” by defendant’s conduct.13 The court awarded $20,000 in damages to Plaintiff.

        • Outcome: The Alaska Supreme Court affirmed the trial’ court’s finding of liability against defendant for intentional infliction of emotional distress but did not change the damages award amount.14 The Court noted that the trial court relied on defendant’s “hostile and bizarre actions in his confrontations with [plaintiff] and the vehicle collision” to justify his award of damages for the intentional infliction of emotional distress claim.15 The Court also rejected defendant’s claims that courts ought to be hesitant to impose liability for intentional infliction of emotional distress in the context of intra-family relations.16 The Court noted that the “outrageous” threshold required in intentional infliction of emotional distress claims ensured that family disputes or arguments would not be actionable.17 Where a family member’s conduct is not “simple harassment, criticism or [familial] anger,” but instead “without rational explanation, bizarre, preposterous and irrational,” a plaintiff may have a viable intentional infliction of emotional distress claim.18 As to damages, the Court refused to find an abuse of discretion in the award, as Plaintiffs had not presented any evidence justifying a particular level of damages.

        • Special Note: The Court found that, although the father’s actions had been part of a pattern of harassment, only those actions within the statute of limitations could be the basis for damages.19

    4. Practice Pointers

      Unlike negligent infliction of emotional distress claims, intentional infliction of emotional distress claims in Alaska do not require the plaintiff also suffer a physical injury (or, as seen in Oaksmith, demonstrate any particularly out of pocket damages resulting from emotional distress).20 An intentional infliction of emotional distress claim, however, requires “extreme and outrageous” conduct in order for a plaintiff to recover.

    1. Lybrand v. Trask, 31 P.3d 801, 803 (Alaska 2001) (citations and internal quotations omitted).
    2. Id. (citation and internal quotations omitted).
    3. Id. at 802.
    4. Id.
    5. Id. at 803-04.
    6. Id.
    7. Id. at 804.
    8. Id. (citing Odom v. Fairbanks Memorial Hosp. 999 P.2d 123, 133 (Alaska 2000) and King v. Brooks, 788 P.2d 707, 711 (Alaska 1990)).
    9. Id. at n.8.
    10. Id. at 193.
    11. Id.
    12. Id. 193-94.
    13. Id. at 194.
    14. Id. at 200-01.
    15. Id. at 200.
    16. Id.
    17. See id.
    18. Id.
    19. Id. at 199-200.
    20. In Alaska, a negligent infliction of emotional distress claim will not stand in the absence of physical injury unless the plaintiff meets the bystander or pre-existing duty exception. See Kallstrom v. United States, 43 P.3d 162, 165 (Alaska 2002).
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