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| Changing
Times: “What
the Supreme Court giveth, the Supreme Court
may taketh away.” This
lesson has been learned, much to their chagrin, by tort claimants
and their counsel in A
pair of rulings last year severely crimped, and may have mortally
wounded well-established causes for action for intentional infliction
of emotional distress and invasion of privacy.
The limitations imposed upon those landmarks parallel the constriction
of wrongful discharge claims based upon employment manuals, which
claims have been shriveled to the point that they are barely recognizable
any longer. This
is not to say that the state High Court is anti-plaintiff, for it
decidedly is not. At around
the same time that it was dealing crippling setbacks to infliction
and privacy claimants, the Court, in a pair of rulings, limited the
scope of the “intentional act” exclusion from insurance liability
policies, a provision that has been both odious and ominous to many
tort claimants.1 More recently, it has extended the duty of suppliers
of hazardous products,2 and this spring permitted a cause of action
against a physician for wrongful conception due to failure to diagnose
a genetic disease.3 Notwithstanding
these decisions in the insurance imbroglios, litigants and their lawyers
asserting claims of privacy and intentional infliction are reeling
from the reality of restrictive recent rulings.
For them, what once seemed to be the best of times has turned
into the worst of times.
Here’s the tale of the diminution of three significant landmark
legal doctrines. Infliction
Constriction The
tort of intentional infliction of emotional distress does not have
much to celebrate as it reaches its 21st birthday in But
the Court last summer, in Langeslag v. KYMN, Inc., 664 N.W. 2d 860 (Minn.
2003), threw out a $535,000 jury verdict in favor of a Northfield
radio station owner, who had counterclaimed intentional infliction
in response to a lawsuit brought by a discharged sales employee, who
had asserted a number of statutory and tort employment claims.
A Rice County District Court jury, the jury found against the
discharged employee and awarded the large verdict to the principal
owner of the station. The Court of Appeals affirmed, noting that the
discharged employee made two false police reports about the owner,
repeatedly threatened him with lawsuits, and frequently engaged in
boisterous and vulgar arguments at work.4
The
Supreme Court reversed, holding that the claim was not actionable
on grounds that the employee’s conduct was “not extreme and outrageous”
and that there was insufficient evidence of even emotional affliction
attributable to these incidents. The
Court deemed the employee’s conduct “bizarre, unprofessional, and
more than an everyday occurrence in the workplace.”
But the conduct fell short of the “high threshold of proof
necessary to sustain an intentional infliction of emotional distress
claim.”5 The
relationship between the improper behavior and the claimed emotional
infliction also was insufficient.
The evidence of distress centered primarily on the owner’s
own testimony of “severe physical side effects” from the employee’s
conduct, including stomach aches, weight loss, hair loss, and aggravation
of preexisting maladies. These assertions were supplemented by sparse
and somewhat outdated stipulated medical records without any proof
of economic losses or “any similar damage element.”
The Court found this evidence “inconclusive … to establish
a casual connection between the conduct and the emotional distress.” The Court urged that, in the future, the “appropriate
method” of establishing the severity and causal elements of an infliction
claim “is through medical testimony.” The
ruling was not that surprising, given the grudging acceptance of infliction
claims, whether based upon intentional wrongdoing or negligence, in
Hubbard
also expressed skepticism of the quantum of evidence required to prove
the severity of distress. While
not insisting upon medical testimony, as is seemingly required under
Langeslag, it cautioned that “infliction of distress
claims should be required to satisfy a high standard of proof to weed
out “fictitious and speculative” claims because of the often subjective
nature of the harm and also ruled that the claimed afflictions in
Hubbard— depression, high blood pressure, skin rash, and stomach
disorders — did not meet the requisite standard of severity. Post-Hubbard
cases focused upon the limitations of the doctrine. Trial courts rarely upheld and the appellate
courts infrequently affirmed infliction verdicts. To the contrary, they almost invariably upheld
lower court dismissals of infliction claims.6 The
same fate befell negligent infliction claimants, especially when they
asserted that their distress stemmed from witnessing tortious
behavior inflicted upon others rather than themselves. In these third-party situations, the courts
generally followed the pattern of restrictive rulings that either
dismissed the claims or sapped them of vitality.7 As
a result of the Langeslag case, intentional infliction claims have
virtually lost any remaining efficacy. It now seems incumbent upon claimants to produce
substantial medical testimony of severe emotional and mental disturbances
resulting from extraordinarily aberrant conduct, high standards that
very few claimants are likely to satisfy. But
the condemnation of distress claims is not categorical. They still may be asserted, as the Court reaffirmed
in Langeslag, for statutory offenses such as violation
of the Minnesota Government Data Practices Act.8 But
for the bulk of intentional infliction tort claimants, Langeslag pulls the rug from under them and leaves
them on their last legs. Privacy
Punctured Three
weeks before the Langeslag ruling, the Supreme Court imposed severe
restrictions on common law invasion of privacy claims. Nearly five years after the High Court, in a
much-celebrated ruling, first recognized the common law breach of
privacy tort in Lake v. Wal-Mart Stores, Inc., 582 N.W. 2d
231 (Minn. 1998), the Court retrenched on its ruling.
In
The
High Court, in glowing terms, recognized privacy as a “fundamental
right.” It declared that “the right to privacy is an
integral part of our humanity [and] is worthy of [legal] protection.” 582 N.W.2d at 234. The
Court in Subsequent
developments have punctured the Court’s privacy ruling, culminating
in a decision by the High Court in June 2003 in Bodah
v. Lakeville Motor Express, Inc., 663 N.W.2d 550 (Minn. 2003). In Bodah, the
Social Security numbers of 204 truckers working for a Minnesota-based
transportation business, which were required to be maintained confidential
under federal law, were disseminated internally by company dispatchers
to 16 other facilities of the company. The
truckers brought a class action, which was dismissed by the Ramsey
County District Court. The
appellate court overturned that ruling, holding that the case was
actionable and might be maintainable as a class action.
649 N.W.2d 859 ( The
Court relied upon comments to §652D of the Restatement (Second) of
Torts, which recognizes privacy claims of this type only if “the matter
is made public by communicating it to the public at large, or to so
many people that the matter must be regarded as substantially certain
to be one of public knowledge.” On the other hand, the Court stated, the unauthorized
communication of “private” facts about an individual is not tortious if disseminated “to a single place or even a small
group of persons.” Adopting
this approach, the Court regarded the internal dissemination of Social
Security numbers to 16 trucking terminals as falling short of the
scale of distribution necessary to sustain this type of privacy claim. Essentially,
the Court in Bohda erected a two-plateau
system for evaluating privacy claims based on communication of truthful,
but “private” data. The Court
referenced a “distinction … between private and public communication.” The
Bohda ruling was ironic in several
respects. In The
day after the Bohda ruling was issued,
the U.S. Supreme Court agreed to review a privacy case involving the
wrongful distribution of a Social Security number by the Department
of Labor. In Doe v. Chao,
No. 02-1377, the High Court announced that it would decide during
the current Term whether a coal miner can recover statutory damages
for breach of privacy under the Federal Privacy Act, 5 U.S.C. §552a,
without proof of actual damages. The statute, which authorizes a minimum $1,000
in statutory damages, was applied by the 4th Circuit Court of Appeals
after the miner’s Social Security number was wrongfully published
by the Department of Labor. 306
F.3d (4th Cir.., 2002). Whatever
hope this development raised was dashed this spring when the Court
ruled 6-3 that plaintiffs must prove some actual damages to qualify
for the minimum statutory award. Also
close on the heels of the Bohda decision,
the General Accounting Office (GAO), the investigation arm of Congress,
issued a report of widespread abuses of Social Security numbers. The GAO report lamented the easy access to those
identifying digits as a basis for the offenses of identity theft,
fraud, and facilitating terrorist activities.9 Bodah bodes badly for privacy claimants in The
restriction on these privacy claims, similar to the limitation on
infliction claims in Langeslag, is hardly unexpected. Privacy claims have not been welcomed by the
courts, notwithstanding the glowing language of the The
Bodah ruling, therefore, may have
put some privacy claims out of their misery, at least with respect
to the prong relating to publication of truthful but private facts.
Although the other causes of action for invasion of privacy
remain unaffected by the Bodah ruling,
unless the distribution of private information is widespread, such
as through media reporting, it is unlikely that privacy claimants
will be able to prevail on claims of publication of private facts.
Thus, while Bodah was not
a bombshell, it does create a significant crater for common-law invasion
of privacy claims. Manual
Labor The
pattern reflected in Langeslag and Bodah
of retrenching on common-law tort claims is an extension of the two-decade
pattern that developed after another new cause of action was recognized
by the Supreme Court in workplace-related litigation.
In Pine River State Bank v. Mettille, 333 N.W. 2d 622, ( But
the tort has proved to be tart in the 20 years following the As
a result, the torrent of post- Another
type of wrongful discharge cause of action, a statutory claim under
the Whistleblower Act, almost met the same fate, before being rescued
by the Supreme Court in 2002. After
some successful whistleblower cases, a series of decisions by the
Court of Appeals and Supreme Court honed down those claims.
Whistleblowers became less potent, largely due to the imposition
of a “public policy” standard, which required that whistleblowing
activities have an impact on the public at large, rather than individual
whistleblowers, and other restrictive doctrines. 12 Just when whistleblower claims seemed
to be running out of breath, the Supreme Court added breadth to their
stature. In a pair of cases
decided in 2002, the Court dispensed with the “public policy” requirement
in Anderson-Johanning Meier v. Mid-Minnesota Women’s Center, 637 N.W.2d
270 (Minn. 2002), and, a month later, added force to the arsenal of
whistleblowers by holding that they were entitled to a jury trial
when seeking money damages in Abraham v. County of Hennepin,
639 N.W.2d 342 (Minn. 2002). The
two rulings are likely to prevent whistleblowers from falling into
the abyss of employment manual claimants before them.
Concluding
Concerns The
recent Supreme Court rulings restricting intentional infliction suits
in Langeslag and privacy actions in Bodah
case have been greeted with mixed reactions.
Claimants and their advocates, naturally, find them distasteful,
while business and their defenders laud them as reasonable efforts
to reign in these tort doctrines. The
battles over these tort claims and others are likely to continue in
the workplace and elsewhere. When
initially recognized, these causes of action were greeted with Great
Expectations by their proponents.
But they seem to have been built on a house of cards, and the
outlook now is a Bleak House. For the time being, these claimants
are likely to have a dickens of a time pursuing their causes of action.
NOTES 2
Gray v. Budger Mining Corp., 676 N.W.2d
268 ( 3
Molloy v. Meier, 2004 WL 1118696 ( 4
The jury also awarded the station and its owner $100,000 for defamation
and $75,000 to the station for interference with contract. 5
See also Grinnell Mutual Reins Co. v. Enhke,
664 N.W.2d 409 (Minn. App. 6
See e.g. K.A.C. v. Benson, 527 N.W.2d 553 ( 7
Wall v. 8 Navarne v. So. 9 General Accounting Office, “Social Security Numerity Ensuring the Integrity of the SSN,” 10
See e.g. C.L.D. v. Wal-Mart Stores, Inc., 79 F. Supp. 2d. 1000 (D.
Minn. 1999); Walker v. 3M, 2000 wl
520254 (Minn. App. 2000) (unpublished) 11
Audette v. Northeast State Bank of 12 Donahue v. Schwegman,
Lundberg, Woessner & Kluth,
586 N.W.2d 811 (Minn. App. 1998) (“public policy” doctrine). See also Obit v. Microtrac,
Inc. 588 N.W.2d 550 ( MARSHALL
H. TANICK is an attorney with the law firm of Mansfield, Tanick
& Cohen, PA, in |
