New Hampshire Common Law

  1. Invasion of Privacy (General)

    1. Introduction

      Invasion of privacy is four distinct torts. A WMC victim could potentially allege any of these four types of invasion of privacy.

    2. Elements

      1. intrusion upon plaintiff’s physical and mental solitude or seclusion

        (a) One who intentionally intrudes, physically or otherwise,

        (b) upon the solitude or seclusion of another or his private affairs or concerns,

        (c) the intrusion is highly offensive to a reasonable person.1

      2. Public disclosure of private facts;

        Liability for public disclosure of private facts requires:

        (a) One who gives publicity to a matter

        (b) concerning the private life of another,

        (c) where the publication would be highly offensive to a reasonable person, and

        (d) is not of legitimate concern to the public.2

      3. False Light

        A false light claim requires the following:

        (a) The defendant published the information widely (i.e., not to just a single person, as in defamation);

        (b) the publication identifies the plaintiff;

        (c) it places the plaintiff in a "false light" that would be highly offensive to a reasonable person; and

        (d) the defendant was at fault in publishing the information

      4. Appropriation

        Appropriation requires:

        (a) Use of the plaintiffs’ name or likeness

        (b) for the defendant’s benefit or advantage.3

    3. Cases

      1. Lovejoy v. Linehan, 161 N.H. 483, 20 A.3d 274 (2011)

        • Procedural Posture: Candidate for county sheriff brought action against deputy sheriff, author of newspaper article, and county alleging invasion of privacy by public disclosure of private facts. Case was dismissed. Candidate appealed. The Supreme Court affirmed.
        • Law: Invasion of privacy (public disclosure of private facts)
        • Facts: During an election for Sheriff, the incumbent candidate was subject to a newspaper article that claimed he had been convicted of simple assault. The conviction had been annulled, so the candidate sued, claiming that the publication was one involving private facts. The trial court dismissed the case, ruling that the annulled conviction was not private and was a matter of public concern.
        • Outcome: The Supreme Court held that under the relevant statute, annulled convictions could be disclosed under some circumstances, including to determine a person’s fitness for a law enforcement position such as that in the case.
      2. Lath v. Manchester, NH, City of, No. 17-CV-00075-JL, 2017 WL 5186350 (D.N.H. Nov. 7, 2017)

        • Procedural Posture: Plaintiff sought leave to amend his complaint to add claims including invasion of privacy.
        • Law: Invasion of privacy
        • Facts: The plaintiff had a telephone call with his psychiatrist while located in the common area of his condo. This call was recorded by the defendant.
        • Outcome: The court held that the smartphone recording was conducted outside of the complainant’s unit in a common area of the condominium where they resided, and that there was no allegation that the purported invasion of privacy involved an intrusion into something that was secret or private, or that the recording went beyond the limitations of decency. Nevertheless, the court granted the motion for leave to amend if it pleaded sufficient facts.
      3. Hamberger v. Eastman, 106 N.H. 107, 206 A.2d 239 (1964)

        • Procedural Posture: Case was transferred to Supreme Court without ruling.
        • Law: Invasion of privacy (intrusion upon seclusion).
        • Facts: A landlord installed and concealed a listening and recording device in a husband and wife’s bedroom and connected it to his residence by wires capable of transmitting and recording any sounds and voices originating in the bedroom.
        • Outcome: The Supreme Court held that New Hampshire recognizes the tort of intrusion on the facts presented. While defendants argued that no tort should lie without evidence that anyone actually listened to the microphone or recording, that was not necessary because the tort of intrusion does not require communication or publication to third parties.
      4. Fischer v. Hooper, 143 N.H. 585, 732 A.2d 396 (1999)

        • Procedural Posture: Former wife sued former husband for violation of N.H. wiretapping and eavesdropping statute and for common law tort of invasion of privacy. The Superior Court entered judgment on jury verdict for the wife. Husband appealed.
        • Law: Invasion of privacy.
        • Facts: Divorced couple shared custody of their daughter, who also had a therapist and guardian ad litem appointed by the court. The guardian ad litem recommended to both parents, in writing, that conversations with the daughter be recorded, in order that they might be reviewed with the therapist to the communications difficulties that had arisen between the parties. The former husband proceeded to record the former wife’s calls without her permission. The wife learned about the calls from the therapist, and sued the husband for damages.
        • Outcome: On plaintiff’s reasonable expectation of privacy, the Court held that although the plaintiff could have expected that her conversation would be repeated to a third party, the plaintiff could still expect that her actual words and voice would be recorded. The Court also held that the issue of whether conduct exceeds the bounds of decency for the invasion of privacy claim was a jury issue.
    1. Restatement (Second) of Torts § 652B (1977). 

    2. Lovejoy v. Linehan, 161 N.H. 483, 20 A.3d 274 (N.H. 2011) (citing Restatement (Second) of Torts § 652D (1977).) 

    3. Remsburg v. Docusearch, Inc., 149 N.H. 148, 157, 816 A.2d 1001, 1009 (2003) 

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  2. Defamation

    1. Introduction

      Defamation refers to any statement that hurts someone’s reputation. If the statement is in writing, it is known as libel. If the statement is spoken, it is slander. A WMC client may be able to bring a defamation claim in relation to written commentary provided along with a photograph.

    2. Elements

      To create liability for defamation there must be:

      (a) a false and defamatory statement concerning another;

      (b) an unprivileged publication to a third party;

      (c) fault amounting at least to negligence on the part of the publisher; and

      (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.1

    3. Cases

      1. Indep. Mech. Contractors, Inc. v. Burke & Sons, Inc., 138 N.H. 110, 635 A.2d 487 (1993)

        • Procedural Posture: Construction subcontractor brought action against general contractor, alleging breach of contract and defamation. Jury held for subcontractor. General contractor appealed.
        • Law: Defamation.
        • Facts: Following a contentious construction project, the general contractor sent a letter to the subcontractor threatening “to default” it. The subcontractor was subsequently removed from the jobsite. The subcontractor claimed these acts constituted defamation.
        • Outcome: The Supreme Court held that because there was no evidence that a third party received the letter claiming the subcontractor had defaulted, there was no defamation. The Court also rejected plaintiff’s alternate argument that dismissing it from the job site constituted defamation, because there was no publication of a false and defamatory fact. A tort does not occur whenever a person’s reputation is damaged.
    4. Practice Pointers

      • In New Hampshire, several categories of statements are considered defamation per se: someone has a loathsome disease, has committed a crime, and a statement that injures someone’s trade, business, or profession. If a statement falls within one of these categories, a person does not need to prove damages specifically and can permit a jury to presume damages exist and allege that the occurred generally.
      • New Hampshire has a statute for criminal defamation.2 It reads: “I. A person is guilty of a class B misdemeanor if he purposely communicates to any person, orally or in writing, any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt or ridicule. II. As used in this section “public” includes any professional or social group of which the victim of the defamation is a member.”
    1. Rest. (2d) of Torts § 558

    2. Rest of Torts Section 218.; see also N.H. Rev. Stat § 644:11

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  3. Trespass to Chattels

    1. Introduction

      A WMC client may be able to assert a trespass to chattels claim if a person takes possession of a physical (not digital) image of the WMC client.

    2. Elements

      A trespass to chattels claim is found where: “one who without consensual or other privilege to do so, uses or otherwise intentionally intermeddles with a chattel which is in possession of another is liable for a trespass to such person if, a) the chattel is impaired as to its condition, quality or value, or b) the possessor is deprived of the use of the chattel for a substantial time, or c) bodily harm is thereby caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest.”1

    3. Cases

      No relevant case found.

    4. Practice Pointers

      Nominal damages are not recoverable by possessor for harmless intermeddling with a chattel.

    1. Glidden v. Szybiak, 95 N.H. 318, 320, 63 A.2d 233, 235 (1949) 

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  4. Conversion

    1. Introduction

      Conversion is 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. A WMC victim may try to bring a claim of conversion if a defendant appropriates the victim’s private images and refuses to return them to the victim. However, because of the digital nature of photographs and videos online, the perpetrator’s publication of the material may not necessarily interfere with the victim’s possession of it under a conversion claim. A victim has a clearer conversion claim if the perpetrator took the images from the victim in such a way that the victim no longer had access to the images, for example if the perpetrator took physical prints where no digital file exists, or copied the image from the victim’s computer, and then deleted the image from his/her computer.

    2. Elements

      Conversion is 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.1

      According to the Restatement, which is generally followed in New Hampshire, the follow acts are conversion:

      (a) dispossessing another of a chattel;

      (b) destroying or altering a chattel;

      (c) using a chattel;

      (d) receiving a chattel;

      (e) disposing of a chattel;

      (f) misdelivering a chattel

      (g) refusing to surrender a chattel.2

      The following factors are considered:

      (a) the extent and duration of the actor's exercise of dominion or control;

      (b) the actor's intent to assert a right in fact inconsistent with the other's right of control;

      (c) the actor's good faith;

      (d) the extent and duration of the resulting interference with the other's right of control;

      (e) the harm done to the chattel;

      (f) the inconvenience and expense caused to the other.3

    3. Cases

      No relevant case found regarding virtual or nonphysical chattel as subject to conversion claim.

    4. Practice Pointers

    1. LFC Leasing & Fin. Corp. v. Ashuelot Nat. Bank, 120 N.H. 638, 640, 419 A.2d 1120, 1121 (1980) 

    2. Restatement Second of Torts § 223. 

    3. Restatement Second of Torts § 222A(2); see also Muzzy v. Rockingham Cty. Trust Co., 113 N.H. 520, 523, 309 A.2d 893 (1973) 

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  5. Breach of Contract/Promissory Estoppel

    1. Introduction

      In a situation where two parties agree to make private images of a WMC victim on the condition that such images are kept private, the victim may have a claim for breach of contract and can seek damages and injunctive relief if the perpetrator disseminates the images.

    2. Elements

      In order to state a breach of contract claim under New Hampshire law, a plaintiff must allege sufficient facts to show (1) that a valid, binding contract existed between the parties, and (2) that defendant breached the terms of the contract.1

    3. Cases

      1. Wilcox Industries Corp. v. Hansen, 870 F.Supp.2d 296 (D.N.H. 2012)

        • Procedural Posture: Military equipment manufacturer brought action against former employee and competitor, alleging claims including breach of contract. Defendant moved to dismiss.
        • Law: Breach of contract
        • Facts: Military manufacturer builds a self-contained breathing apparatus that can be used in hazardous or contaminated environments. A former employee of the manufacturer signed a NDA, but then used his confidential and trade secret information to create a competing product.
        • Outcome: Court held that manufacturer stated a claim for breach of contract because a breach is presumed to cause injury, and thus a plaintiff need not allege damages separately from an allegation of breach. Accordingly, the allegation that defendant had disclosed information contrary to the NDA was sufficient to plead breach of contract.
    4. Practice Pointers

    1. Wilcox Indus. Corp. v. Hansen, 870 F. Supp. 2d 296, 311 (D.N.H. 2012) 

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  6. Intentional Infliction of Emotional Distress (“IIED”)

    1. Introduction

      Victims of the nonconsensual disclosure, publication, and/or distribution of sexually explicit images may pursue an intentional infliction of emotional distress claim. There does not appear to be precedent directly on point for WMC victims, but notwithstanding the lack of case law, an intentional infliction of emotional distress may be useful where a person repeatedly harasses a victim.

    2. Elements

      The elements of intentional infliction of emotional distress are:

      (1) by extreme and outrageous conduct,

      (2) intentionally or recklessly cause[d] severe emotional distress to another.

      (3) serious mental and emotional harm accompanied by objective physical symptoms.1

    3. Cases

      1. Tessier v. Rockefeller, 162 N.H. 324, 33 A.3d 1118 (2011)

        • Procedural Posture: Plaintiff appealed a grant of defendant’s motion to dismiss.
        • Law: Intentional infliction of emotional distress
        • Facts: Plaintiff is the wife of an attorney at a law firm who was accused by defendants of misusing and converting substantial assets of the plaintiff’s husband’s client for his own use. The defendants made numerous threats against the husband which the plaintiff alleged forced her to sign a reverse mortgage under duress and thus constituted IIED.
        • Outcome: Court held that the plaintiff failed to allege facts sufficient to establish the requisite extreme and outrageous conduct toward her. In the absence of such allegations, the court affirmed the trial court’s dismissal of the IIED count. In determining whether conduct is extreme and outrageous as required for IIED, the conduct must be 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. It is not enough that a person acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice.
    4. Practice Pointers

    1. Tessier v. Rockefeller, 162 N.H. 324, 341, 33 A.3d 1118, 1132 (2011) 

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

    1. Introduction

      The victim of a nonconsensual online publication of intimate photographs or videos may also 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 significant enough to cause objective physical symptoms.

    2. Elements

      The elements of a claim for negligent infliction of emotional distress include:

      (1) causal negligence of the defendant,

      (2) foreseeability, and

      (3) serious mental and emotional harm accompanied by objective physical symptoms.1

    3. Cases

      1. Tessier v. Rockefeller, 162 N.H. 324, 33 A.3d 1888 (2011)

        • Procedural Posture: Plaintiff appealed a grant of defendant’s motion to dismiss.
        • Law: Negligent infliction of emotional distress
        • Facts: Plaintiff is the wife of an attorney at a law firm who was accused by defendants of misusing and converting substantial assets of the plaintiff’s husband’s client for his own use. The defendants made numerous threats against the husband which the plaintiff alleged forced her to sign a reverse mortgage under duress and thus constituted NIED. She alleged in conclusory fashion that she suffered severe emotional distress requiring hospitalization.
        •  Outcome: The court held that, taking the pleadings as true, the Plaintiff made out a case of NIED. Plaintiff must show that it was foreseeable that the act would cause emotional harm, that she suffered a deterioration of physical and mental well-being requiring medical care and hospitalization for potentially life threatening conditions. Here, the Plaintiff’s claim for fraudulent misrepresentation constituted the foreseeable act, and her pleading otherwise made out the required elements.
    4. Practice Pointers

    1. Tessier v. Rockefeller, 162 N.H. 324, 342, 33 A.3d 1118, 1131 (2011). Recovery is not permitted “or mere upset, humiliation, hurt feelings, or bad manners.” Orono Karate, Inc. v. Fred Villari Studio of Self Def., Inc., 776 F. Supp. 47, 51 (D.N.H. 1991). 

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  8. Prima Facie Tort

    1. Introduction

      New Hampshire does not appear to recognize the cause of action for a prima facie tort.

    2. Elements

      N/A

    3. Cases

      1. White v. Ransmeier & Spellman, 950 F. Supp. 39 (D.N.H. 1996)

        • Procedural Posture: employee brought action against her employer alleging that she was terminated in violation of the ADA and Title VII. Employer counterclaimed for damages.
        • Law: Prima facie tort
        • Facts: Plaintiff was employed by the defendant as a legal secretary. Plaintiff had an affair with the firm’s legal administrator, who then resigned and other employees at the firm blamed the plaintiff for his departure. The firm terminated plaintiff after the plaintiff had made death threats against other employees of the firm.
        • Outcome: On employee’s motion to dismiss counterclaims, the District Court held that no claim would be recognized under N.H. law for prima facie tort. While other jurisdictions have recognized versions of “umbrella” liability for intentional torts, the New Hampshire Supreme Court has not recognized such a cause of action.
    4. Practice Pointer

      While the federal district court found that New Hampshire courts had not recognized such a claim and thus refused to do so, New Hampshire courts have also not precluded such a claim.

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  9. Injurious Falsehood

    New Hampshire does not appear to recognize a claim for injurious falsehood.

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  10. Conspiracy

    1. Introduction

      Conspiracy in New Hampshire is a distinct claim, but must rely on an underlying tort or wrong which the alleged conspirators agreed to commit.

    2. Elements

      (1) two or more persons;

      (2) an object to be accomplished (i.e., an unlawful object to be achieved by lawful or unlawful means or a lawful object to be achieved by unlawful means);

      (3) an agreement on the object or course of action;

      (4) one or more unlawful overt acts; and

      (5) damages as the proximate result thereof.1

    3. Cases

      1. Univ. Sys. of N.H. v. U.S. Gypsum Co., 756 F. Supp. 640 (D.N.H. 1991)

        • Procedural Posture: University brought action against asbestos products manufacturers, seeking to recover cost of removing asbestos from its buildings. Manufacturers brought summary judgment motions.
        • Law: Conspiracy  
        • Facts: University owned 150 buildings throughout New Hampshire and claimed many of the buildings had asbestos-containing products manufactured by defendants, including ceiling products and thermal insulation. University alleged that defendants knew or should’ve known the dangers of asbestos as early as the 1930s and conspired to keep such knowledge from the public. Defendants moved to dismiss the fraudulent concealment claim, and argued that the conspiracy claim must also be dismissed because it requires an underlying tort.
        • Outcome: The Court agreed that there must be an underlying tort in order to support a civil action for conspiracy. Accordingly, it dismissed the conspiracy claim against the defendant that had obtained dismissal on the underlying tort, and allowed the conspiracy claim to proceed where it had denied summary judgment on the underlying tort because there were genuine factual disputes.
    4. Practice Pointers

    1. Jay Edwards, Inc. v. Baker, 130 N.H. 41, 47, 534 A.2d 706, 709 (1987) 

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