NASHVILLE, Tenn. (Legal Newsline) - The daughter of an elderly woman who was filmed by a shower attendant, who shared the images with her incarcerated boyfriend, can continue with a privacy lawsuit after the death of her mom, Tennessee’s highest court has ruled.
A Tennessee statute preserving most tort claims after the death of the plaintiff has an exception for “wrongs affecting the character,” but that doesn’t cover invasion of privacy, the Tennessee Supreme Court ruled April 25.
Lawyers representing Annie J. Jones sued Life Care Centers of America’s Tullahoma facility after her nude body was captured in a video call a Life Care employee made to her jailed boyfriend. The employee propped her mobile phone in a position where she could chat with the boyfriend while giving Jones a shower. During the call, she mentioned Jones’ first name several times.
None of the Life Care employees involved in the incident reported it to Life Care. But a day later, law enforcement officers who were monitoring the call notified Life Care, which fired the employee who took the video as well as witnesses who failed to report the incident.
Life Care interviewed Jones as part of its investigation and reported she had advanced dementia and no recollection of being recorded. The home sent a letter to Joyce Sons, her daughter and legal guardian, expressing regret for the “breach of protected information.”
Sons sued anyway in February 2020, claiming medical malpractice and invasion of privacy. Life Care admitted to the filming but said its expert, Dr. Larry Tune, opined Jones couldn’t comprehend what was happening and thus suffered no psychological injury.
Sons acknowledged in a deposition her mother never mentioned the incident and Sons wasn’t aware of any lingering effects. She submitted an affidavit from her expert, Dr. Jonathan Klein, who said Jones nevertheless “suffered a loss of privacy and dignity.”
A trial judge dismissed the case in March 2022. The following month, Jones died and Sons was appointed to continue the litigation on appeal.
The Court of Appeals reversed the dismissal, ruling state law allows lawsuits “founded on wrongs or contracts” to proceed after the death of the plaintiff and the exception for “wrongs affecting the character” didn’t apply because it referred to slander and defamation, not invasion of privacy.
Even though Jones wasn’t aware of the intrusion on her privacy and suffered no damages from it, the appeals court said “we would consider it a detriment to public policy to condone intrusions upon the seclusion of the most vulnerable—those unable to comprehend that the intrusion is occurring — without the possibility of redress or consequence.”
The Supreme Court agreed, in a decision by Chief Justice Holly Kirby.
Under common law, tort claims historically died with the plaintiff, but in the early 1800s Tennessee legislators passed statutes allowing lawsuits to survive the death of the person who sued. Section 20-5-101 of the current Tennessee Code allows all claims to survive except for “wrongs affecting the character of the plaintiff.”
Life Care argued a federal court interpreted Tennessee law to preclude intrusion of privacy suits by plaintiffs who were deceased. But the Supreme Court said Life Care’s reasoning was based on a footnote to the Restatement of Torts, while Section 20-5-101 clearly allows any tort claim to proceed except for the narrow exception for defamation.
As for intrusion upon seclusion, the court noted Jones wasn’t in her home but she had a “right to be let alone” and protected from filming in the shower. The court cited other cases, such as where a dying patient was photographed in his hospital bed over the protestations of his wife, or a “voyeuristic” employee who secretly filmed female customers in a dressing room.
“Here, even though Ms. Jones was so cognitively impaired that she had to live among employees in a skilled-care facility, she nevertheless had the right not to involuntarily have her nude body put on display,” the court said. “And she retained that right irrespective of her character.”
The court rejected comparisons to Harris v. Horton, a 2009 appellate decision upholding the dismissal of a lawsuit by the family of a man whose body was photographed after a fatal accident and shown to students in driving class. The family members sued after the death of Harris over their own right to privacy, the Supreme Court said.
Life Care was represented by Alan S. Bean and K. Nicole Poole, while the plaintiffs were represented by Richard D. Piliponis, Benjamin J. Miller, and Sarah L. Martin.