Howard v. Aspen Way Enters., Inc.

406 P.3d 1271

Gretchen HOWARD, Petitioner,

v.ASPEN WAY ENTERPRISES, INC., d/b/a Aaron's Sales and Leasing, a franchise of Aaron's, Inc., Respondent.

Audrey Kinion, Petitioner,

v.Aspen Way Enterprises, Inc., d/b/a Aaron's Sales and Leasing, a franchise of Aaron's, Inc., Respondent.

Steve Winn, Petitioner,

v.Aspen Way Enterprises, Inc., d/b/a Aaron's Sales and Leasing, a franchise of Aaron's, Inc., Respondent.

S-17-0072

S-17-0073

S-17-0074

Supreme Court of Wyoming.

December 19, 2017

Representing Appellant: John H. Robinson of Jamieson & Robinson, LLC, Casper, WY; R. Daniel Fleck of The Spence Law Firm, LLC, Jackson, WY; and John P. LaBuda of LaBuda Law Office, PC, Pinedale, WY. Argument by Messrs. Robinson and LaBuda.

Representing Appellee: Adam Warren and Adam J. Tunning of Moulton Bellingham PC, Billings, MT; and Jeff S. Meyer of Murane & Bostwick, LLC, Casper, WY. Argument by Mr. Warren.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

HILL, Justice.

[¶1] Gretchen Howard, Audrey Kinion, and Steve Winn (Plaintiffs) individually filed separate claims in circuit court asserting invasion of privacy claims against Aspen Way Enterprises, Inc. (Aspen Way). The circuit court concluded that Wyoming does not recognize a cause of action for Plaintiffs' privacy claims and granted Aspen Way summary judgment on those claims. Plaintiffs appealed, and the district court affirmed on the same basis. We granted the Plaintiffs' petitions for writ of review, consolidated their petitions, and now reverse and remand for proceedings consistent with this opinion.

ISSUES

[¶2] Plaintiffs present three issues on appeal, which they state as follows:

1. Whether Wyoming recognizes the tort of invasion of privacy.

2. If so, whether Wyoming recognizes the elements of the tort of invasion of privacy/intrusion upon seclusion as set forth in Restatement (Second) of Torts § 652B (1977).

3. Whether genuine issues of material fact preclude entry of summary judgment.

FACTS

[¶3] Aspen Way owns a rent-to-own franchise in Casper, Wyoming, operating under the name Aaron's Sales and Leasing. Plaintiffs each leased a computer from Aspen Way pursuant to lease-purchase agreements, and in May 2015, Plaintiffs individually filed separate complaints against Aspen Way related to those agreements. The complaints each generally alleged that Aspen Way installed software on Plaintiffs' leased computers, without Plaintiffs' knowledge, that enabled Aspen Way to track the leased computers' locations, remotely activate the computers' webcams, and capture screen shots and key strokes.¹ Based on these allegations, Plaintiffs asserted that claims for invasion of privacy/intrusion upon seclusion and breach of the covenant of good faith and fair dealing.

[¶4] Plaintiffs filed their separate complaints in the circuit court for Natrona County. Aspen Way answered each complaint and subsequently filed motions for summary judgment on each complaint. As grounds for summary judgment, Aspen Way asserted Wyoming does not recognize a cause of action for Plaintiffs' privacy claims and that even if Wyoming did recognize such a claim, no genuine issue of material fact exists with respect to either Plaintiffs' privacy claims or their claims for breach of the covenant of good faith and fair dealing. Plaintiffs responded with their oppositions.

[¶5] On May 11, 2016, the circuit court issued orders in the three cases seeking certification of questions of law to the district court, including the question of whether Wyoming recognizes a cause of action for Plaintiffs' privacy claims.² The district court rejected the certified questions in each case, and the circuit court then ruled on Aspen Way's summary judgment motions, granting them in part and denying them in part. With respect to Plaintiffs' privacy claims, the court ruled such claims were not recognized in Wyoming and granted Aspen Way summary judgment. With respect to the claims for breach of the covenant of good faith and fair dealing, the court found genuine issues of material fact and denied summary judgment on those claims. As to the privacy claims, the court ruled its judgment was final and appealable.

[¶6] Plaintiffs filed timely notices of appeal to the district court in each case. On February 23, 2017, the district court issued orders affirming the circuit court orders. In so ruling, the court observed:

* * * [A]t this time, there is simply not the historical and judicial context to declare that Wyoming definitively recognizes the tort of invasion of privacy/intrusion upon seclusion. In the absence of a clear indication that Wyoming would recognize such a claim, this Court will not presume upon the functions of the Wyoming Supreme Court with regard to the proper development of the common law in Wyoming.

[¶7] On March 10, 2017, Plaintiffs filed petitions for writ of review in each case, and on April 4, 2017, this Court issued orders granting the petitions and consolidating the cases for appeal.

STANDARD OF REVIEW

[¶8] We review the circuit court's entry of summary judgment de novo, meaning we consider the same materials and apply the same standards as the circuit court. Elec. Wholesale Supply Co., Inc. v. Fraser, 2015 WY 105, ¶ 13, 356 P.3d 254, 258 (Wyo. 2015). "We examine the record from the vantage point most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record." Id. (quoting Baker v. Speaks, 2014 WY 117, ¶ 9, 334 P.3d 1215, 1219 (Wyo. 2014) ). The question of whether a cause of action is or will be recognized in Wyoming is a question of law we review de novo. Townsend v. Living Centers Rocky Mountain, Inc., 947 P.2d 1297, 1298 (Wyo. 1997).

DISCUSSION

[¶9] Plaintiffs ask this Court to recognize a common law cause of action for the invasion of privacy tort defined by the Restatement (Second) of Torts (1977) as intrusion upon seclusion. Aspen Way argues against recognizing a common law cause of action for Plaintiffs' privacy claims, contending that if such a cause of action is to be recognized in Wyoming, it should be created and defined by legislative action. We agree with Plaintiffs that the Restatement cause of action for intrusion upon seclusion is consistent with the value our state places on privacy, and we therefore recognize the tort as part of Wyoming's common law.

A. Intrusion upon Seclusion as Defined by Restatement (Second) of Torts

[¶10] The Restatement (Second) of Torts generally defines liability for an invasion of privacy as follows:

(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.

(2) The right of privacy is invaded by

(a) unreasonable intrusion upon the seclusion of another, as stated in § 652B ; or

(b) appropriation of the other's name or likeness, as stated in § 652C; or

(c) unreasonable publicity given to the other's private life, as stated in § 652D; or

(d) publicity that unreasonably places the other in a false light before the public, as stated in § 652E.

Restatement (Second) of Torts § 652A (1977).

[¶11] The strand of the privacy tort Plaintiffs assert, and the one they ask this Court to recognize, is intrusion upon seclusion, which the Restatement defines as follows:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Restatement (Second) of Torts § 652B (1977).

[¶12] The comments to the section 652B explain the tort's parameters and the showing required to establish its elements.

a. The form of invasion of privacy covered by this Section does not depend upon any publicity given to the person whose interest is invaded or to his affairs. It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man.

b. The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home. It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined.

c. The defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs. Thus there is no liability for the examination of a public record concerning the plaintiff, or of documents that the plaintiff is required to keep and make available for public inspection. Nor is there liability for observing him or even taking his photograph while he is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye. Even in a public place, however, there may be some matters about the plaintiff, such as his underwear or lack of it, that are not exhibited to the public gaze; and there may still be invasion of privacy when there is intrusion upon these matters.

d. There is likewise no liability unless the interference with the plaintiff's seclusion is a substantial one, of a

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