Court Case No. 49D01-1801-CT-1781
Loretta H. Rush Chief Justice.
matter has come before the Indiana Supreme Court on a
petition to transfer jurisdiction, filed pursuant to Indiana
Appellate Rules 56(B) and 57, following the issuance of a
decision by the Court of Appeals. The Court has reviewed the
decision of the Court of Appeals, and the submitted record on
appeal, all briefs filed in the Court of Appeals, and all
materials filed in connection with the request to transfer
jurisdiction have been made available to the Court for
review. Each participating member has had the opportunity to
voice that Justice's views on the case in conference with
the other Justices, and each participating member of the
Court has voted on the petition.
duly advised, the Court DENIES the petition to transfer.
J., Massa, J., and Slaughter, J., vote to deny transfer.
C.J., dissents from the denial of transfer with separate
opinion in which Goff, J., joins.
Chief Justice, dissenting.
this Court passes up an important opportunity-to clear up
uncertainty and declare that Indiana recognizes a claim of
public disclosure of private facts. Because our guidance on
this issue is necessary, I respectfully dissent from the
denial of transfer.
disclosure of private facts is a distinct wrong that falls
under the broad tort of invasion of privacy. Restatement
(Second) of Torts § 652A cmt. b (Am. Law Inst. 1977).
According to the Restatement, a person is subject to
liability for the sub-tort of public disclosure if the person
gives "publicity" to a matter that concerns the
private life of another, that would be highly offensive to a
reasonable person, and that is not of legitimate public
concern. Id. § 652D. For purposes of this rule,
"publicity" means communication "that reaches,
or is sure to reach, the public, " but not communication
"to a single person or even to a small group of
persons." Id. § 652D cmt. a.
Court discussed the Restatement's definition of public
disclosure of private facts in Doe v. Methodist
Hospital, 690 N.E.2d 681 (Ind. 1997) (plurality
opinion). There, Doe sued his co-worker for invasion of
privacy after the co-worker disclosed to two fellow employees
that Doe tested positive for HIV. Id. at 683. In a
plurality opinion, this Court affirmed summary judgment for
Doe's co-worker, concluding that "[t]he facts and
the complaint in this particular case do not persuade us to
endorse the sub-tort of disclosure." Id. at
separate opinion, then-Justice Dickson agreed with the
result- given that Doe failed to show
"publicity"-but disagreed that the sub-tort of
public disclosure wasn't cognizable. Id.
(Dickson, J., concurring in result). Rather, his separate
opinion maintained that public disclosure of private facts
was already established under Indiana common law; that the
state constitution supported recognition of disclosure
claims; and that significant policy concerns counseled
against abrogating the sub-tort. Id. at
forward a few years to Felsher v. University of
Evansville, 755 N.E.2d 589 (Ind. 2001). That case did
not involve the sub-tort of public disclosure but, rather,
another distinct wrong under the umbrella of invasion of
privacy-appropriation of name or likeness. Id. at
593. Before analyzing the appropriation claim, this Court
briefly brought up Doe and characterized that
plurality opinion as a "decision not to recognize a
branch of the [invasion of privacy] tort involving public
disclosure of private facts." Id. (citing 690
N.E.2d at 682, 693). Felsher's pronouncement on
the sub-tort arguably closed the door to disclosure claims in
less than three months later, this Court cast doubt on
Felsher's seemingly decisive statement that the
sub-tort of public disclosure was not cognizable. In
Allstate, this Court said that "[t]he extent to
which the tort of invasion of privacy is recognized in
Indiana is not yet settled." Allstate Ins. Co. v.
Dana Corp., 759 N.E.2d 1049, 1056–57 (Ind. 2001).
In making that statement, the Court described Doe as
a "disagreement whether to recognize a claim for
'public disclosure of private facts.'"
Id. at 1057 (citing 690 N.E.2d 681). Notably missing
from Allstate's invasion-of-privacy discussion
was any mention of Felsher.
this trilogy of opinions-Doe, Felsher, and
Allstate-courts have reasonably adopted disparate,
and sometimes ambivalent, positions on whether the sub-tort
of public disclosure of private facts exists in Indiana.
See Robbins v. Trs. of Ind. Univ., 45 N.E.3d 1, 7
n.1 (Ind.Ct.App. 2015) (finding "some support" for
the view that "invasion of privacy by public disclosure
of private facts is not a valid cause of action in
Indiana"); id. at 13 (Crone, J., concurring in
part and concurring in result in part) ("Whether Indiana
recognizes this tort is technically an open question, but for
all practical purposes the answer is currently no.");
J.H. v. St. Vincent Hosp. & Health Care Ctr.,
Inc., 19 N.E.3d 811, 815–16 (Ind.Ct.App. 2014)
(analyzing the merits of the plaintiff's
public-disclosure claim and thus implicitly recognizing the
claim's cognizability); Westminster Presbyterian
Church of Muncie v. Younghong Cheng, 992 N.E.2d 859, 868
(Ind.Ct.App. 2013) (maintaining that "public disclosure
of private facts is not a recognized cause of action in
Indiana"), trans. denied; see also Brown v.
Wabash Nat. Corp., 293 F.Supp.2d 903, 905 (N.D. Ind.
2003) ("Even assuming Indiana courts ...