Michigan Common Law

  1. Invasion of Privacy (General)

    1. Introduction

      There is no statutory right to privacy in Michigan. The tort of invasion of privacy is based on a common-law right to privacy, and is said to protect against four types of invasion of privacy: 1) intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; 2) public disclosure of embarrassing or private facts; 3) publicity that places the plaintiff in a false light in the public eye; and 4) appropriation for the defendant’s advantage of the plaintiff’s name or likeness.

    2. Elements

      1) Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs:

      • The existence of a secret and private subject matter;
      • A right possessed by the plaintiff to keep that subject matter private; and
      • The obtaining of information about that subject matter through some method objectionable to a reasonable person.
         

      2) Public disclosure of embarrassing facts:

      • The disclosure of information,
      • that is highly offensive to a reasonable person, and
      • that is of no legitimate concern to the public.
         

      3) Publicity that places plaintiff in a false light in the public eye:

      • Defendant broadcast to the public in general, or a large number of people;
      • information that was unreasonable and highly objectionable by attributing to the plaintiff characteristics, conduct, or beliefs;
      • these were false and placed the plaintiff in a false position;
      • defendant knew or acted in reckless disregard to the falsity of the matter and the false light in which the plaintiff would be places.
         

      4) Appropriation, for the defendant’s advantage of the plaintiff’s name or likeness.

      • Plaintiff has a pecuniary interest or significant commercial value in her identity.
      • Defendants engaged in commercial exploitation of plaintiff’s identity.
         
    3. Cases

      1. Doe v. Mills, 536 N.W.2d 824 (Mich. App. 1995)

        • Procedural Posture: Plaintiffs brought action for invasion of privacy and intentional infliction of emotional distress and the circuit court granted summary judgment. Plaintiffs appealed.
        • Law: Invasion of privacy (intrusion on seclusion and public disclosure of private facts).
        • Facts: Defendants displayed the real names of plaintiffs on large signs held up for public view outside of abortion clinic.
        • Outcome: The court found that plaintiffs sufficiently alleged public disclosure of embarrassing private facts making summary judgment improper, but affirmed summary judgment regarding intrusion upon seclusion finding the plaintiffs did not sufficiently allege defendants obtained the information by an offensive intrusion.
           
      2. Porter v. Royal Oak, 542 N.W.2d 905 (Mich. Ct. App. 1995)

        • Procedural posture: Plaintiff alleged that defendants gave the media a memo that placed him in a false light; trial court granted summary judgment of plaintiff’s claims; plaintiff appealed.
        • Law: false light invasion of privacy.
        • Facts: plaintiff, a police officer, alleged that defendant police department communicated to the media false information in providing them a memorandum regarding plaintiff’s disciplinary actions.
        • Outcome: The court of appeals affirmed summary judgment for defendants, holding that because the information contained in the memorandum was true, plaintiff’s false light claim could not be sustained. The court further held that to the extent the plaintiff contended the media’s use of the information created a false public impression of plaintiff, defendants could not be held liable for the characterization of truthful information by the media.
           
      3. Arnold v. Treadwell, No. 283093, 2009 WL 2136909 (Mich. Ct. App. July 16, 2009)

        • Procedural Posture: Plaintiff appealed order granting summary disposition to defendants regarding invasion of privacy claim.
        • Law: appropriation (of the plaintiff’s name or likeness).
        • Facts: Plaintiff, a model, entered a contractual agreement wherein defendants conducted photo shoot in return for the right to post her pictures on specified websites. However, defendants also published her photo on other websites and submitted her photos to magazines, not specified in the contract.
        • Outcome: The plaintiff claimed the trial court erred by improperly analyzing whether her image had significant commercial value because commercial value is not required for recovery at common law. However, the appeals court disagreed and found the trial court did not err in evaluating the commercial value, although it did conclude that this is a question of fact for which plaintiff presented sufficient evidence to survive summary disposition.
        • Special Notes: The Court followed a line of authority, not common in all states, that appropriation is tied to a property right, and therefore a plaintiff must demonstrate a pecuniary interest in their name or likeness that is of significant commercial value.
      4. Hackler v. Austin, 17-0137-NO, Macomb County Circuit Court (2017)

        • This media-reported case resulted a $600,000 default judgment for a Michigan victim after her ex-boyfriend posted a video on Facebook of the two of them having sex.
        • Law: Invasion of privacy (intrusion upon seclusion and disclosure of private embarrassing materials) and intentional infliction of emotional distress. The plaintiff also alleged assault, battery, and false imprisonment because the defendant grabbed the plaintiff, threw her into a chair, and physically restrained her after she discovered the videos on the defendant’s computer and attempted to delete them.
        • Outcome: The court awarded a default judgment of $600,000 in the plaintiff’s favor, finding the defendant engaged in “intentionally tortious and malicious acts against Plaintiff.”1 The court based the judgment on plaintiff’s claims of intentional infliction of emotional distress, intrusion upon seclusion, along with plaintiff’s claims of assault, battery, and false imprisonment. The court also divested the defendant of copyrights to “all photographs or videos in Defendant’s actual or constructive possession which depict Plaintiff in a partially or fully nude state or depict Plaintiff in a sexual manner,” and awarded the plaintiff these copyrights. Id. Lastly, the court ordered the defendant to immediately destroy and not publish “all photographs or videos that depict Plaintiff in a partially or fully nude state or which depict Plaintiff in a sexual manner” and ordered the defendant to remove all such photographs and videos from the Internet. Id.
        • Special Note: Where a plaintiff does not have similar claims for assault, battery, and false imprisonment, it may be less likely that a plaintiff will recover as large of a judgment.
    4. Practice Pointers

      • In another media-reported case brought by the same attorney involved in the Hackler case, a Michigan victim was awarded $500,000 after her ex-boyfriend posted nude photographs of her on multiple internet sites.2 The claims for this case likely involved invasion of privacy, although media reports do not specify.
      • For false light, courts require a showing of knowledge of falsity or reckless disregard of the truth.3
      • Appropriation of name or likeness requires a showing that plaintiff’s name or likeness holds significant commercial value. As a result, an appropriation claim may be difficult for most WMC victims in Michigan.
         
    • 1. Default Judgment Against Aaron Michael Austin, Hackler v. Austin, 17-0137-NO, Macomb County Circuit Court (April 11, 2017).
    • 2. Due to privacy concerns, the identities of parties were not disclosed to the press, and thus the complaint has not been located.
    • 3. Cantrell v. Forest City Pub. Co., 419 U.S. 245, 249, 95 S. Ct. 465, 469, 42 L. Ed. 2d 419 (1974).
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  2. Defamation

    1. Introduction

      In Michigan, the tort of defamation exists at common law. Defamation per se exists if the communication is false and imputes a criminal offense or lack of chastity. Unlike many other states, defamation regarding one’s business or profession is not defamation per se in Michigan. Libel and slander are prohibited by statute in Michigan. See Mich. Comp. Laws Ann. § 600.2911.

    2. Elements

      1. A false and defamatory statement concerning the plaintiff;
      2. An unprivileged publication to a third party;
      3. Fault amounting at least to negligence on the part of the publisher; and
      4. Either actionability of the statement irrespective of special harm (defamation per se) or the existence of actual harm by the publication.
    3. Cases

      1. Linebaugh v. Sheraton Mich. Corp., 497 N.W.2d 585 (Mich. Ct. App. 1993)

        • Procedural Posture: trial court granted summary disposition for defendants regarding plaintiff’s defamation claim; plaintiff appealed.
        • Law: defamation.
        • Facts: Defendant circulated a cartoon depicting plaintiff and male coworker in a sexually compromising position.
        • Outcome: The court of appeals found that a drawing that imputes a lack of chastity to a female is actionable per se, irrespective of harm; lack of chastity may be imputed by reference of acts other than “promiscuous sexual intercourse,” such as the sexual activity depicted in the cartoon at issue;
        • Special Notes: the court here found that because the cartoon “could be interpreted as depicting plaintiff engaged in a sexual act with a male other than her husband” it imputed a lack of chastity, implying that the same cartoon drawn of plaintiff and her husband would not be defamation per se.
           
    4. Practice Pointers

      • Actions for libel or slander have a statute of limitations of 1 year.
      • Michigan courts also recognize an “injurious falsehood” tort action, which may in some cases overlap with the tort of defamation.
         
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  3. Conversion

    1. Introduction

      Conversion involves a distinct act of dominion over another’s property, and may be committed by a series of acts, including ‘ (a) intentionally dispossessing another of a chattel,‘ (b) intentionally destroying or altering a chattel in the actor's possession, ‘ (c)  using a chattel in the actor's possession without authority so to use it, ‘ (d) receiving a chattel pursuant to a sale, lease, pledge, gift or other transaction intending to acquire for himself or for another a proprietary interest in it, ‘ (e) disposing of a chattel by a sale, lease, pledge, gift or other transaction intending to transfer a proprietary interest in it, ‘ (f) misdelivering a chattel, or ‘ (g) refusing to surrender a chattel on demand.’

    2. Elements

      1. Any distinct act of dominion
      2. Wrongly asserted
      3. Over the personal property of another
    3. Cases

      1. Miracle Boot Puller Co. v. Plastray Corp., 225 N.W.2d 800 (Mich. Ct. App. 1975)

        • Procedural Posture: plaintiff brought action alleging conversion of patent rights and mold for making patented devise; trial court entered summary judgment of dismissal and plaintiff appealed.
        • Law: Conversion.
        • Facts: Plaintiff brought suit against Michigan company alleging Defendant had obtained possession of Plaintiff’s patented mold for boot-fitter, but did not pay for the mold or return it to Plaintiff.
        • Outcome: Court of Appeals reversed summary judgment as to conversion claim, finding that because the mold was “specifiable, physical chattel” it could be the subject of conversion, as could “intangible personal property.” Therefore, both the mold and the intangible right to benefit from the patent could be converted.
           
    4. Practice Pointers

      Both tangible and intangible property rights can be converted.

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  4. Breach of Contract/Promissory Estoppel

    1. Introduction

      Breach of contract/promissory estoppel claims in Michigan share those of other states at common law. These claims may be available to WMC victims who are promised that images will not become public.

    2. Elements

      Breach of Contract:

      1. Existence of a contract between the parties;
      2. The terms of the contract require performance of a certain action by the defendant;
      3. The defendant breached its obligation to perform; and
      4. The plaintiff incurred damages as a result of the breach.

      Promissory Estoppel:

      1. A promise;
      2. That the promisor should reasonably have expected to induce action of a definite and substantial character on the part of the promise;
      3. That in fact produced reliance or forbearance of that nature; and
      4. Relief can only come by the promise being enforced.
    3. Cases

      Research has not revelated any cases factually analogous to WMC situations at this time.

    4. Practice Pointers

      Damages for mental distress are not recoverable in a breach of contract action absent allegation and proof of tortious conduct existing independent of the breach of contract.1

    • 1. See Kewin v. Massachusetts Mut. Life Ins. Co., 295 N.W.2d 50 (1980)
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  5. Intentional Infliction of Emotional Distress (“IIED”)

    1. Introduction

      Intentional infliction of emotional distress is a common law tort in Michigan. This tort focuses on the extreme or outrageous conduct; it is not that the defendant acted with an intent which is tortious or even criminal, or that he intended to inflict emotional distress, or even that the conduct is malicious. Conduct must be extreme enough that an average member of the community would exclaim “Outrageous!” The tort has been applied to sexual depictions/cartoons of a coworker in the workplace and therefore might be used by a WMC plaintiff where images are intentionally shared with coworkers or others.

    2. Elements

      1. extreme and outrageous conduct;
      2.  intent or recklessness;
      3.  causation; and
      4.  severe emotional distress.
    3. Cases

      1. Miracle Boot Puller Co. v. Plastray Corp., 225 N.W.2d 800 (Mich. Ct. App. 1975)

        • Procedural Posture: trial court granted summary disposition for defendants regarding plaintiff’s claim; plaintiff appealed.
        • Law: intentional infliction of emotional distress.
        • Facts: Defendant circulated a cartoon depicting plaintiff and male coworker in a sexually compromising position.
        • Outcome: the court of appeals found that a reasonable fact-finder could find that the depiction of plaintiff engaged in a sexual act with a coworker constitutes conduct so outrageous in character and so extreme in degree that it goes beyond all bounds of common decency in civilized society; further, the creation and delivery of it constituted reckless behavior, and Defendant’s conduct was sufficiently outrageous and extreme as to render him liable for IIED.
        • Special Notes: the court emphasized that IIED claims are only appropriate where the “conduct complained of has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community”; liability does not extend to “insults, indignities, threats, annoyances, petty oppressions, and other trivialities.”
      2. Hackler v. Austin, 17-0137-NO, Macomb County Circuit Court (2017)

        • This media-reported case resulted a $600,000 default judgment for a Michigan victim after her ex-boyfriend posted a video on Facebook of the two of them having sex.
        • Law: Invasion of privacy (intrusion upon seclusion and disclosure of private embarrassing materials) and intentional infliction of emotional distress.1 The plaintiff also alleged assault, battery, and false imprisonment because the defendant grabbed the plaintiff, threw her into a chair, and physically restrained her after she discovered the videos on the defendant’s computer and attempted to delete them.
        • Outcome: The court awarded a default judgment of $600,000 in the plaintiff’s favor, finding the defendant engaged in “intentionally tortious and malicious acts against Plaintiff.”2 The court based the judgment on plaintiff’s claims of intentional infliction of emotional distress, intrusion upon seclusion, along with plaintiff’s claims of assault, battery, and false imprisonment. The court also divested the defendant of copyrights to “all photographs or videos in Defendant’s actual or constructive possession which depict Plaintiff in a partially or fully nude state or depict Plaintiff in a sexual manner,” and awarded the plaintiff these copyrights. Id. Lastly, the court ordered the defendant to immediately destroy and not publish “all photographs or videos that depict Plaintiff in a partially or fully nude state or which depict Plaintiff in a sexual manner” and ordered the defendant to remove all such photographs and videos from the Internet. Id.
        • Special Note: Where a plaintiff does not have similar claims for assault, battery, and false imprisonment, it may be less likely that a plaintiff will recover as large of a judgment.
    4. Practice Pointers

      • Conduct must be outrageous, atrocious, utterly intolerable; under Linebaugh, it may be sufficient that numerous individuals find the conduct offensive.
      • Mere insults, indignities, annoyances, petty oppressions, trivialities not sufficient.
         
    • 1. Complaint, Hackler v. Austin, 17-0137-NO, Macomb County Circuit Court (Jan. 13, 2017).
    • 2. Default Judgment Against Aaron Michael Austin, Hackler v. Austin, 17-0137-NO, Macomb County Circuit Court (April 11, 2017).
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  6. Negligent Infliction of Emotional Distress (“NIED”)

    1. Introduction

      The focus of a NIED tort is on physical injury or manifestation of emotional distress suffered from witnessing injury to a third party. The action is therefore likely unavailable for WMC plaintiffs in Michigan.

    2. Elements

      1. The injury threatened or inflicted on the third person is a serious one, of a nature to cause severe mental disturbance to the plaintiff;
      2. The mental shock must result in actual physical harm.
      3. The plaintiff is a member of the third person's immediate family;
      4. The plaintiff is present at the time of the accident or suffers shock “fairly contemporaneous” with the accident.
    3. Practice Pointers

      • Courts have declined to extend the NIED beyond the situation where a plaintiff witnesses negligent injury to a third person and suffers mental disturbances as a result. Duran v. Detroit News, Inc., 200 Mich. App. 622, 629, 504 N.W.2d 715, 720 (Mich. Ct. 1993).
      • In Michigan, there is no recovery for mental or emotional distress arising out of simple negligence absent physical injury.1
        • Can also be satisfied through a physical manifestation of the emotional distress
      • Absent knowledge of hypersensitivity, there is generally no recovery from hypersensitive mental disturbance.2
         
    • 1. Manie v. Matson Oldsmobile-Cadillac Co., 378 Mich. 650, 658, 148 N.W.2d 779, 783 (Mich. Ct. App. 1967).
    • 2. Daley v. LaCroix, 384 Mich. 4, 13, 179 N.W.2d 390, 395 (Mich. 1970).
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  7. Prima Facie Tort

    1. Introduction

      A WMC victim will not be able to bring a cause of action for a prima facie tort in Michigan because Michigan doesn’t recognize the claim. It would therefore be advisable for a victim to bring an IIED claim.

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  8. Injurious Falsehood

    1. Introduction

      Injurious falsehood is recognized in Michigan, and operates similar to defamation. The main difference is that injurious falsehood requires some interference with an economically advantageous relationship which results on a pecuniary loss, so defamation is likely more applicable in a WMC situation.

    2. Elements

      1. Publishing false statements;
      2. Harmful to the interests of another;
      3. Intent that publication of the statements will result in harm to the interests of the other having a pecuniary value, or recognizes or should recognize that it is likely to do so; and
      4. Knows the statement is false or acts in reckless disregard of truth or falsity.
    3. Cases

      1. Kollenberg v. Ramirez, 339 N.W.2d 176 (Mich. Ct. App. 1983)

        • Procedural Posture: plaintiff brought action brought action against physician and circuit court entered summary judgment in physician’s favor; plaintiff appealed;
        • Law: injurious falsehood.
        • Facts: Plaintiff (licensed pharmacist) was the owner and operator of pharmacy where customer came to fill two prescriptions ordered by defendant, the customer’s doctor. The pharmacist believed the prescriptions to be incorrect and called to confirm with the doctor, who ordered the prescriptions filled. The customer suffered a severe reaction and hospitalization; and the doctor told her the error was caused by the pharmacist. The customer filed lawsuit against the pharmacist (which resolved). The pharmacist then sued the doctor alleging that he published a false statement to customer stating the pharmacist incorrectly filled the prescription.
        • Outcome: Plaintiff successfully alleged elements of injurious falsehood.
        • Special Notes: where a false statement “casts aspersion” on both an individual personally and upon that individual’s tangible or intangible property interest resulting in damages, injurious falsehood and defamation may overlap.
           
    4. Practice Pointers

      Injurious falsehood claims in Michigan typically concern derogatory or disparaging communications regarding the title to property or its quality.

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  9. Conspiracy

    1. Introduction

      If a sexual photo or video is published online, it may have been published by several people, rather than just one. Moreover, although one person does the actual posting of an image, several other individuals may make comments or add sound. In such cases, a plaintiff could try to make out a claim of conspiracy along with its other allegations.

    2. Elements

      1. A combination of two or more persons;
      2. By some concerted action;
      3. To accomplish a criminal or unlawful purpose or to accomplish a lawful purpose by criminal or unlawful means.1
    3. Cases

      1. Roberts v. Fox, 10 N.W.2d 857 (Mich. 1943)

        • Procedural Posture: action to recover damages; directed verdict for defendant, plaintiff appealed.
        • Law: conspiracy.
        • Facts: Plaintiff was arrested for arson; plaintiff alleged a conspiracy by defendants to illegally cause his arrest and injure plaintiff by falsely publishing an article asserting he was a criminal for the purpose of ruining his reputation and leading to arrest, and from which plaintiff suffered damages.
        • Outcome: Supreme Court of Michigan affirmed, finding plaintiff improperly attempted to create an action for conspiracy where it was in actuality several distinct torts by different defendants which, through combination, injured the plaintiff.
           
    • 1. Advocate.Advocacy Org. for Patients & Providers v. Auto Club Ins. Assn, 257 Mich.App. 365, 384, 670 N.W.2d 569, 580 (Mich. Ct. App. (2003).
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