Multimedia Wmaz, Inc. v. Kubach., 212 Ga. App. 707, 443 S.E.2d 491 (1994)
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Jones, Cork & Miller, Hubert C. Lovein, Jr., Howard J. Strickland, Jr., for appellant.
In this invasion of privacy case, defendant appeals from a jury verdict awarding plaintiff $500,000 in general damages and $100 in punitive damages.
He did not use plaintiff and the other participant to pre-set the digitization even though they were there and available, however; nor did he allow them to see the level of digitization and give them the opportunity to ask that it be increased as defendant had with the female patients on the earlier AIDS talk show. Defendant's employee also testified that he did not like to put the level of digitization too high because if he did so, the viewing audience would lose interest.
When plaintiff was first diagnosed with AIDS in late 1987, his physical condition was poor and he was depressed. After he began taking the drug AZT in the spring of 1988, however, he enjoyed a remarkable turnaround in both his physical and emotional condition. Plaintiff was upbeat and wanted to live as long as he could. He went out with friends often, and frequently would be greeted by people who knew him from when he owned and operated an extremely popular restaurant in Macon (1975-1985). In September 1989, plaintiff began working on a part-time basis at Peter Pan Cleaners. He worked 20 to 25 hours a week, waiting on customers and doing whatever needed to be done. His boss testified that he was outgoing and friendly. He was not actually paid a salary, but received the equivalent of $3.35 per hour in food, dry cleaning and use of a vehicle, as well as some cash. After defendant's broadcast, plaintiff became withdrawn, extremely depressed and almost suicidal. He refused to leave his home for fear of being recognized and pointed out as an AIDS patient, and this situation was exacerbated when his sister convinced him to go out to a fast food place and he was in fact recognized and harassed by several young people. Plaintiff was unable to continue working at the cleaners because he no longer felt he could deal with the public at the front counter, though he did work in the back for a few months during the cleaners' busy season the only time his boss could afford to keep him on without waiting on customers. Dr. Katner testified that when a person has AIDS, stress and emotional upset often have a detrimental effect on their physical condition, and that in plaintiff's case it manifested itself in shingles, an extremely painful disease associated with stress. His physical condition, particularly his immune system condition, dropped dramatically after defendant's broadcast. This very bad situation lasted for about a year. Since then plaintiff has improved, but his condition is still worse than it was before the broadcast. Plaintiff sued defendant for invading his privacy by publicly disclosing private facts about him, and defendant appeals from the jury's verdict for plaintiff.
1. Defendant contends plaintiff "waived" his right to bring this action for public disclosure of private facts by making the fact that he had AIDS "public" prior to defendant's broadcast. Among the elements necessary to establish a cause of action for public disclosure of embarrassing private facts is the requirement that "the facts disclosed to the public must be private, secluded or secret facts and not public ones." Cabaniss v. Hipsley,
In this case, defendant points to evidence that prior to its broadcast, plaintiff: (a) appeared on a national television show, allowing his back to be viewed undigitized and his voice to be heard undisguised; and (b) acknowledged his disease to family members, friends, medical personnel and members of his AIDS support group. Plaintiff's face was adequately digitized in the earlier nationwide program, however, and the evidence did not show that his identity was revealed to the community by that broadcast. Moreover, we cannot agree that plaintiff made the fact of his disease public as a matter of law, thereby waiving his right to keep it from the entire television viewing public in Macon, by telling a relatively small number of people [1] he thought had reason to know of his disease; for unlike the disclosures of the plaintiffs and defendants in Cabaniss and Cummings, plaintiff's disclosure of the fact of his disease to his family, friends and support group and defendant's disclosure of plaintiff's identity as an AIDS patient to the television viewing public in Macon were similar in neither degree nor context.
"[The right of privacy] may be waived for one purpose and still asserted for another; it may be waived in behalf of one class and retained as against another class." Pavesich v. New England Life Ins. Co.,
Defendant suggests we should nonetheless rule in its favor on policy grounds, perhaps fashioning a rule analogous to the Good Samaritan Statute (OCGA
3. Defendant next argues that its motion for directed verdict should at least have been granted with respect to punitive damages. "Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences." OCGA
4. Defendant contends that since plaintiff took the position that his homosexual lifestyle was irrelevant to the issues at trial, the lower court erred in excusing for cause three potential jurors who expressed bias against homosexuals. This contention is without merit. See Morris v. Bonner,
5. Defendant argues that the trial court erred in submitting the question of lost wages to the jury. It argues that there is insufficient evidence of what plaintiff might have earned, so any award must be speculative. We disagree. Plaintiff and his former boss testified that prior to the broadcast, plaintiff worked 20 to 25 hours a week for the equivalent of $3.35 an hour. Plaintiff's former boss also testified that she would have continued to employ plaintiff indefinitely if he had been able to wait on customers, but that he was unable to do so after the broadcast because he was afraid to deal with the public. This evidence provided a sufficient basis for an award of lost wages.
6. Defendant asserts that the trial court erroneously ruled that damage to reputation is not a necessary element of an invasion of privacy cause of action, and consequently erred in excluding evidence defendant wanted to introduce regarding plaintiff's social history. We agree with the trial court that damage to reputation is not necessary to establish an invasion of privacy. While language in the early cases suggested that the interest protected by the tort was that of reputation, see, e.g., Cabaniss, 114 Ga. App. at 372, more recent cases have recognized that invasion of privacy is an action for personal injury which may involve injury to reputation but also may involve injury to "the plaintiffs' personal sensibilities and mental repose." Hudson v. Montcalm Pub. Corp.,
The statutory standard for award of punitive damages is promulgated in OCGA
Where, as in this case, the defendant has exercised at least some degree of care, and even though its lack of strict control to protect appellee's identity from disclosure as a person who has contracted AIDS may have amounted to negligence or even gross negligence, it does not constitute any evidence of wilful misconduct or of an entire want of care necessary to support a jury award of punitive damages. Compare Wilson v. Brighton Homes,
2. Assuming appellee did not totally waive his right of privacy -- at least as to those persons outside the station viewing the broadcast via television -- the question remains whether the $500,000 general damage verdict can be sustained in view of the erroneous consideration of the question of punitive damages by the jury. In this instance, the initial charge to the jurors requiring them to determine whether punitive damages should have been imposed created a fair risk of taint to the general damage award notwithstanding the bifurcated proceedings conducted as to the ultimate award of punitive damages. The jury was given a detailed charge on punitive damages after being advised that "[i]n tort actions, there may be aggravating circumstances which may warrant the awarding of additional damages called punitive damages." (Emphasis supplied.) This charge did not expressly instruct the jury as to what point in the proceeding the amount of such additional damages would be determined if the jury found it should be awarded. The record on its face establishes that the jury awarded $500,000 compensatory damages to appellee, but in the subsequent bifurcated proceeding awarded appellee punitive damages of only $100, as against defendant corporate entity. This $100 punitive damage award was made notwithstanding that the jury was instructed by the court that "punitive damages shall be awarded not as Compensation to a plaintiff but solely to punish, penalize or deter a defendant." This is a correct statement of the statutory purpose of punitive damages. OCGA
I believe, as a matter of law, that a punitive damage award of only $100, under the existing circumstances, is so grossly disproportionate when compared to the substantial general damage award adjudged, and is so blatantly incapable of fulfilling the statutory purposes to punish, penalize, or deter, that it cannot be ruled out that the jury erroneously included punitive damage elements within their $500,000 general damage award. Compare Petrolane Gas Svc. v. Eusery,
Additionally, "[i]nstructions not warranted by the evidence are cause for new trial unless it is apparent that the jury could not have been misled thereby." Harden v. Drost,
This judgment must be reversed and a new hearing conducted, at least, as to the issue of compensatory damages.
I am authorized to state that Judge Smith joins in this opinion.
BEASLEY, Presiding Judge, concurring specially.
Upon reconsideration, the fallacy of the previous majority position has been made clear. There was no waiver of the right to retain from general public knowledge, as disseminated by public broadcast media, the fact that plaintiff, a private person, had contracted AIDS. This is so because, first of all, he had expressly reserved the right to nondisclosure of his identity and the defendant had agreed to conceal it as a condition of his participation in the show.
There are constitutionally protected zones of privacy, some of which are identified in Griswold v. Connecticut, 381 U. S. 479, 484-486 (85 SC 1678, 14 LE2d 510) (1965). Sixty years previously, the Supreme Court of Georgia expressly acknowledged in Georgia law the right of privacy, and the concept that it has many forms. Pavesich v. New England Life Ins. Co.,
In any event, the right of privacy extends to embarrassing private facts which, if invaded by unauthorized public disclosure, gives rise to a tort claim against the discloser. Cabaniss v. Hipsley,
In this case, plaintiff agreed to the public disclosure of many facts concerning his condition and experience, as this was a talk show and he was subject to unrehearsed questions. But he was to appear anonymously, with his identity a secret from the general public which would be watching and listening. He carved out a zone of privacy which he refused to relinquish and which, as to defendant, he was assured would be protected. That "zone" related not only to what could not be disclosed about him; it related also to those to whom disclosure was chosen not to be made. The zone of information and the zone of persons informed are both implicated.
The fact that plaintiff had the medical condition AIDS was at first a totally personal and private fact save, it is reasonably inferred, for the medical personnel who discovered it and told him. (Others may have known from them, but there is no evidence of it.) From that point on, he shared the fact with people he selected, for personal purposes and in his own way and time and within his control or within the control of persons he trusted to restrict the information judiciously. He did not broadcast it or authorize others to broadcast it generally, out to members of the public whom he did not know and who did not know him even indirectly.
As to whether the fact is "private, secluded or secret" on the one hand, which it must be in order for disclosure to be recoverable, or "public" on the other hand, which is not protected ( Cabaniss, supra at 372), is a matter of degree. There is a continuum from what is purely private (a fact only I know about myself) to what is purely public (a fact broadcast by the media). Disclosing a fact to another person does not make it "public" in the commonly understood sense. The question is, at what point, in the numbers or categories of people, does the exposure of the fact become public? What makes it "public?" Telling one hundred members of a confidential support group may retain its private nature for the purposes of this tort, whereas telling one newspaper reporter would give it a decidedly public nature.
It was a jury question in this case, although at times the question may be determined as a matter of law. It was not waived as a matter of law, because there was evidence of an express non-waiver against general public disclosure to thousands of people in and near plaintiff's place of residence, plus an agreement to honor it. In addition, there was evidence that plaintiff's disclosures were limited, discriminate, and not so far-reaching as to be conclusively categorized as "public" even though they were, to an extent, uncontrolled. As stated in Pavesich, "[t]he right of privacy may be waived either expressly or by implication, . . . ; but a waiver authorizes an invasion of the right only to such an extent as is necessarily to be inferred from the purpose for which the waiver is made. A waiver for one purpose and in favor of one person or class does not authorize an invasion for all purposes or by all persons and classes." Pavesich, supra at 191. [3] As repeated and applied in Doe v. Sears,
The fact that plaintiff had brought selected people into the protected zone of privacy, or expanded it to include them, did not necessarily erase the zone's borders. There was evidence that the zone reserved was a fairly confined one, bounded by a relatively small expanse of private or discrete disclosure, as distinct from general public knowledge. There was also evidence that the defendant gave the fact broad public dissemination, beginning with the unidentified in-studio audience which saw him live, and going on to the general viewing public due to the insufficiency of the digitization and the detectable display of his features, clothing, body build, physical mannerisms, and hair color, particularly before digitization was enhanced.
ANDREWS, Judge, dissenting.
Plaintiff sued defendant on the basis of invasion of privacy for damages resulting from the disclosure that he has AIDS to persons viewing the broadcast.
Defendant contends that, prior to the broadcast, plaintiff had waived his right to privacy by disclosing he has AIDS to numerous persons. The plaintiff's invasion of privacy action was based on his claim that defendant publicly disclosed an embarrassing private fact about him -- that he has Acquired Immune Deficiency Syndrome (AIDS). "There are at least three necessary elements for recovery under this theory: (a) the disclosure of private facts must be a public disclosure; (b) the facts disclosed to the public must be private, secluded or secret facts and not public ones; (c) the matter made public must be offensive and objectionable to a reasonable man of ordinary sensibilities under the circumstances." Cabaniss v. Hipsley,
As to the second element, there was undisputed evidence that the fact plaintiff has AIDS had been disclosed to numerous persons prior to the broadcast. The plaintiff testified that the fact he has AIDS had been disclosed by him to nine of his friends; one daughter of a friend; three television employees involved in a previous broadcast; about ten members of an AIDS support group which he attended; six medical personnel including his personal physician and medical support staff; six family members including his mother, father, two sisters, brother-in-law and aunt; an unknown number of persons in local AIDS support organizations; other doctors and medical personnel who had treated him; and three persons with whom he had sexual relations. One of the plaintiff's sisters, who lived out of state, testified that she disclosed plaintiff has AIDS to three of her bosses at work, several other friends at work, and to a number of personal friends outside of work. She testified it was not something she tried to keep secret, and that the plaintiff left disclosure up to her own good judgment. The plaintiff's aunt testified that she disclosed plaintiff has AIDS to her mother, her son, and her brother-in-law. One of the plaintiff's friends testified that he disclosed the plaintiff has AIDS to his three sisters, his brother, and to two of his friends. When questioned about how AZT treatment had affected his AIDS condition prior to the broadcast, the plaintiff testified in general terms that: "I had many young people coming and asking me, you know, why was I doing so well?
How was I doing so well? And that's one of the reasons I went on the show, because I wanted to let them know you can live with AIDS, you don't have to die with AIDS. . . ."
"The right of privacy . . . like every other right that rests in the individual, may be waived by him, or by any one authorized by him, or by any one whom the law empowers to act in his behalf, provided the effect of his waiver will not be such as to bring before the public those matters of a purely private nature which express law or public policy demands shall be kept private. This waiver may be either express or implied, but the existence of the waiver carries with it the right to an invasion of privacy only to such an extent as may be legitimately necessary and proper in dealing with the matter which has brought about the waiver. It may be waived for one purpose and still asserted for another; it may be waived in behalf of one class and retained as against another class; it may be waived as to one individual and retained as against all other persons." Pavesich v. New England Life Ins. Co.,
This case deals with the plaintiff's contention that he limited the disclosure of the private fact that he has AIDS to a certain class or group of persons and retained a right of privacy in that fact as to other persons who saw him identified as an AIDS patient on the broadcast. By definition, the plaintiff's AIDS condition had been disclosed prior to the broadcast to only a "class" of persons, since not everyone knew he had AIDS. However, the evidence in this case shows that the "class" of persons who knew the plaintiff had AIDS included the plaintiff's immediate family members, a group of extended family members, members of plaintiff's AIDS support group who apparently had signed an agreement of confidentiality, friends of the plaintiff and those with whom he was sexually involved, family members and friends of one of plaintiff's friends, an indefinite number of persons involved with AIDS support organizations, an indefinite number of co-workers and personal friends of one of the plaintiff's family members, and the "many young people" referred to by the plaintiff who inquired about his ability to live with AIDS during his AZT therapy. While indicating that he had concerns about disclosure of his AIDS condition because of potential adverse public reaction, the plaintiff testified he was not ashamed of the fact that he had AIDS, and that he "told my friends as it came about for whatever reason it came about." There was evidence the plaintiff told a family member to exercise her own discretion in disclosing his condition.
It need not be decided here to what extent certain immediate family members or others included in the "class" who knew the plaintiff had AIDS, are persons bound by law or public policy to maintain confidentiality. Whether or not the plaintiff expected those he told not to tell others, and whether or not those he told breached a duty not to further disclose his AIDS condition, is not the issue in this case. Here, the plaintiff seeks to recover money damages against the defendant for disclosing his AIDS condition to the broadcast audience based on a claim that his condition was a private, secret or secluded fact, not a public fact. The issue here is whether or not the plaintiff's secret had been made public prior to the broadcast, regardless of how it was disclosed. The majority focuses on those persons whom the plaintiff personally told he had AIDS and the plaintiff's expectation that they would not indiscriminately further disclose this fact. This ignores evidence that, rightly or wrongly, those he told, told numerous other persons of the plaintiff's condition, with the result that, with or without the plaintiff's permission, an indefinitely large number of persons knew of the plaintiff's AIDS condition.
The evidence shows that as a result of disclosures made directly by the plaintiff, or subsequent disclosures made by persons he told, a large, indefinite number of persons, not required by law or public policy to maintain confidentiality, knew the plaintiff had AIDS. The initial and subsequent disclosures set in motion a progression of further disclosures to an expanding "class" of persons. Obviously, the broadcast identified the plaintiff as an AIDS patient to persons outside this "class" who did not previously know. Nevertheless, the number of persons who knew in relation to the number who did not know is not controlling in this case. The crux of the matter is that disclosure of his condition had been made by the plaintiff or others to a sufficient number of persons not bound by law or public policy to maintain privacy, such that the plaintiff voluntarily relinquished, or by disclosures made by others, involuntarily forfeited, any expectation that his AIDS condition was a secret. In other words, although the disclosures were limited to a "class" of persons in the sense that disclosures had not previously been made to all the people who saw the plaintiff identified on the broadcast, the persons who knew prior to the broadcast did not constitute a "class" of persons to whom disclosure was a limited waiver of the right to privacy, since it included a large, indefinite number of persons in which the plaintiff had no legitimate expectation of confidentiality. The numerous disclosures, made or set in motion by the plaintiff, introduced the private fact that he has AIDS into the public domain such that he could not have had any reasonable expectation that this fact remained a private matter. There is a point of disclosure beyond which a matter is no longer private in any reasonable sense even though everyone does not know about it. Since that point of public disclosure was clearly reached in the present case prior to the broadcast, I conclude, as a matter of law, that the plaintiff wholly waived a right to privacy in his AIDS condition and retained no right of privacy as to those in the broadcast audience who did not know he had AIDS at the time of the broadcast. See Cummings v. Walsh Constr. Co., 561 FSupp. 872 (S.D. Ga. 1983).
Although the pre-trial order entered in the case states that the plaintiff's cause of action is based on the tort of invasion of privacy, the plaintiff's allegations in the pre-trial order, liberally construed, and the evidence on which the case was tried, were sufficient to embrace a tort action based on the above duty assumed by the defendant. Cooper v. Rosser,
The defendant moved for a directed verdict on the invasion of privacy action on grounds other than waiver, and subsequently made a motion for j.n.o.v. based on the grounds previously raised and waiver, which was denied by the trial court. The denial of j.n.o.v. on the waiver issue was enumerated as error on appeal. Grounds asserted in a motion for j.n.o.v. which were not asserted in a motion for directed verdict will not be considered on appeal. OCGA
I am authorized to state that Presiding Judge McMurray and Presiding Judge Birdsong join in this dissent.
ON MOTION FOR RECONSIDERATION.
During the pendency of defendant's motion for reconsideration, defendant filed a suggestion of Buddy Worth's death, and plaintiff voluntarily substituted Barbara Kubach, Buddy Worth's legal representative. Kubach is hereby substituted as a party to this appeal. Thus, the style of this appeal has changed. Apart from this modification, our opinion remains the same and defendant's motion for reconsideration is denied.
Karen K. Daniels, Cooper & Rumsey, Lawrence A. Cooper, for appellee.
1994
Notes:
1. Even if we accept defendant's estimate of approximately 60 individuals, this number is relatively small in relation to the television viewing public in the Macon area.
2. Defendant suggests that in Lowe, as in this case, the plaintiff was not involved in a criminal incident or investigation, and the trial court's denial of the publisher's motion for summary judgment was nonetheless reversed there. However, the plaintiff in Lowe, while not directly involved in a criminal investigation, was a prisoner in an institution under investigation; and the fact of his incarceration (the "disclosure" of which was the subject of his lawsuit) was already a matter of public record. Here, plaintiff is not even indirectly involved in a criminal investigation, and the fact of his disease was not a matter of public record prior to this broadcast.
3. Cox Broadcasting Corp., supra at 494, points out that the commentary to the Restatement limits the tort to instances where the publicity is of facts not already made public.
4. That first element is undisputed here in that the disclosure that plaintiff has AIDS took place by means of a television broadcast to the general viewing public within the broadcast area. As to the third element, the parties do not raise the issue, and it is assumed for present purposes that public disclosure that the plaintiff has AIDS would be "offensive and objectionable to a reasonable man of ordinary sensibilities." Cabaniss, supra at 372.
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This document cites
- U.S. Supreme Court - Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)
- U.S. Supreme Court - Griswold v. Connecticut, 381 U.S. 479 (1965)
- Supreme Court of Georgia - YARBRAY v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY., 261 Ga. 703, 409 S.E.2.d 835
- Supreme Court of Georgia - FOSKEY v. FOSKEY., 257 Ga. 736, 363 S.E.2.d 547 (1988)
- Supreme Court of Georgia - PENDLEY et al. v. PENDLEY., 251 Ga. 30, 302 S.E.2.d 554 (1983)
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