Decker, Kevin M.

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Mitchell Hamline School of Law

William Mitchell Law ReviewVolume 26 | Issue 4 Article 182000A Survey of Recent Developments in the Law: TortLawKevin M. DeckerFollow this and additional works at: http://open.mitchellhamline.edu/wmlrThis Article is brought to you for free and open access by the Law Reviewsand Journals at Mitchell Hamline Open Access. It has been accepted forinclusion in William Mitchell Law Review by an authorized administratorof Mitchell Hamline Open Access. For more information, please contactsean.felhofer@mitchellhamline.edu.© Mitchell Hamline School of LawRecommended CitationDecker, Kevin M. (2000) "A Survey of Recent Developments in the Law: Tort Law," William Mitchell Law Review: Vol. 26: Iss. 4,Article 18.Available at: http://open.mitchellhamline.edu/wmlr/vol26/iss4/18TORT LAWA. Invasion of PrivacyThe Minnesota Supreme Court made great strides inrecognizing the tort of invasion of privacy in Lake v. Wal-Mart Stores,Inc., but it left other courts with the task of determining the scopeof the doctrine. In C.L.D. v. Wal-Mart Stores, Inc.,2 the United StatesDistrict Court for the District of Minnesota interpreted the"publication of private facts,"3 which is one of three distinct causesof action falling within Minnesota's invasion of privacy tort. Thecourt construed the tort's breadth narrowly, adhering to Minnesotacases preceding Lake.4In C.L.D., the plaintiff began working in August of 1995 as acashier at one of defendant's Wal-Mart stores in Mankato,Minnesota.5 When she began her employment, plaintiff read andsigned two standard documents setting forth Wal-Mart'semployment policies: The New Associate Form and The AssociateHandbook. The former document outlined the defendant'spolicies and practices with regard to new employees, while thelatter document covered Wal-Mart's history, employee training,employee evaluations, personnel records, and company goals.Both documents included statements of the defendant's "OpenDoor Policy," which was described in the New Associate Form as1. 582 N.W.2d 231 (Minn. 1998). The court recognized three of the fourcauses of action found in the Restatement (Second) of Torts section 652A,including: intrusion upon seclusion, appropriation of name or likeness, andpublication of private facts. See id. at 236.2. 79 F. Supp.2d (D. Minn. 1999).3. See id. at 1083-86.4. See id. at 1084-85. The court cited the Restatement (Second) of Torts that"provides that the term publicity should be construed narrowly." Id. at 1084. Inaddition, the court stated that "the majority of state and federal courts to considerthe issue have [done so with a narrow scope]." Id. Finally, the court citedprevious Minnesota cases that considered the tort in dicta and concluded that thestate courts would adopt a narrow definition of the tort, perhaps even narrowerthan the Restatement. See id.5. See id. at 1081.6. See id.7. See id.1Decker: A Survey of Recent Developments in the Law: Tort LawPublished by Mitchell Hamline Open Access, 2000WILLIAM MITCHELL LAW REVIEWfollows: "Wal-Mart has an Open Door Policy which encouragesassociates to discuss any matter freely, openly, and in confidencewith their Store manager or other levels of Management. Weencourage you to use this at anytime."8In addition, the Associate Handbook stated that none of thepolicies described in the manual were terms of employment nordid they result in a contract.9 Plaintiff signed both the NewAssociate Form and the Associate Handbook on August 29, 1995,"thereby acknowledging that she had read and understood them." °In September 1997, plaintiff learned that she was pregnantand decided to have an abortion in early October 1996.1 Plaintiffsought medical leave from work to have the procedure. 2Specifically, plaintiff requested medical leave from assistantmanager John Enright.5  Enright granted the permission andplaintiff then "volunteered the fact that she was pregnant and'losing the baby."' 4  Plaintiff stated that she divulged thecircumstances because "she felt psychological pressure fromEnright to legitimize her request."' 5Plaintiff contends that when she returned to work three of herco-workers knew of her pregnancy and abortion.' 6 Plaintiff allegedthat the three employees knew because Enright told them;although she had no direct evidence to support her contention. 7In December of 1996, plaintiff voluntarily disclosed her situation toother employees because she felt the need "to defend herselfagainst rumors." Soon thereafter in February of 1997 plaintiffquit herjob.' 9Plaintiff filed suit for, inter alia, tortious invasion of privacy.'The Minnesota federal district court, "[1] acking instruction on thisissue from the courts of Minnesota... look[ed] to other sources8. Id. The Associate Handbook provided substantially the same description.See id.9. See id. at 1082.10. See id.11. See id.12. See id.13. See id.14. Id.15. Id.16. See id.17. See id.18. Id.19. See id.20. See id.1346 [Vol. 26:42William Mitchell Law Review, Vol. 26, Iss. 4 [2000], Art. 18http://open.mitchellhamline.edu/wmlr/vol26/iss4/18TORT LAWfor guidance."21  After looking to the Restatements, otherjurisdictions, and any tendencies from the Minnesota courts, thecourt found that plaintiff failed to present a case for invasion ofprivacy and therefore granted defendant's summary judgment22motion. In finding that plaintiff did not present an invasion ofprivacy case, the court determined that there was an insufficientnumber of people with knowledge to constitute publication, andthat even if there were enough people with knowledge to establishpublication, there was insufficient evidence to prove the defendantpublicized the facts.2First, the district court looked to see if the private facts wereknown by enough people to constitute publication.24  Indetermining what would be enough publicity, the court looked tothe Restatement of Torts, which requires that the facts be dispersedto enough people "that the matter must be regarded assubstantially certain to become one of public knowledge."25Further, the Restatement's comments state "it is not an invasion ofthe right of privacy... to communicate a fact concerning theplaintiff's private life to a single person or even a small group ofpersons., 2  The court went on to state that the majority of otherjurisdictions have adopted a substantially similar narrow standardand that it was thus likely that this would be the standard adopted27by the Minnesota courts. Indeed, the court pointed toMinnesota's gre-Lake decisions that also imply a narrow definitionof publicity. Thus, the court concluded that the standard ofpublicity in Minnesota is a narrow one, requiring more than"disclosure to a few individuals" of private facts.29 As a result, thecourt held that because only a few people had knowledge of theplaintiffs abortion, there was no publicity and therefore noinvasion of privacy. 0Even if the number of persons in the case were sufficient to21. Id. at 1083.22. See id. at 1083-85.23. See id. at 1085.24. See id. at 1084.25. Id. (quoting RESTATEMENT (SECOND) OFTORTS § 652D cmt. a (1977)).26. RESTATEMENT (SECOND) OFTORTS § 652D cmt. a (1977).27. See C.L.D., 79 F. Supp.2d at 1084.28. See id. at 1084-85. The court cited Hendry v. Conner, 226 N.W.2d 921,923 (Minn. 1975), which states that communication to a small number of people isinsufficient to trigger an invasion of privacy tort. See id.29. See C.L.D., 79 F. Supp.2d at 1085.30. See id.20001 13473Decker: A Survey of Recent Developments in the Law: Tort LawPublished by Mitchell Hamline Open Access, 2000WILLIAM MITCHELL LAW REVIEWconstitute publicity, the court found that there was insufficientevidence that the defendant disclosed the private facts to others. 3'In doing so, the court noted the lack of direct evidence andpointed to several possible alternatives as to how the private32information could have leaked out. Thus, the court held that themere possibility that the defendant dispersed the information wasnot enough to withstand summary judgment. 3B. Negligence-Property Owners and Trespassing ChildrenIn Croaker v. Mackenhausen,34 the Minnesota Supreme Courtreversed the Minnesota Court of Appeal's decision and strictlyconstrued the Restatement (Second) of Torts section 339requirement that "the possessor of land know or have reason toknow that children are likely to trespass. ,15  In doing so, theMinnesota Supreme Court applied a more stringent standard,requiring that the possessor of land must "have reason to anticipatethe presence of the child at the place of danger." 6In Croaker, tragedy struck when five children were playing in avan on the defendant's land and they lit a fire in a gasoline canisterthat caused an explosion resulting in the death of a three-year-oldand badly burning a five-year-old and eight-year-old.3' The childrenwere locals who frequently visited the defendant's resort, as didmany other children. On the day in question, the children wentto the resort and, finding the lodge closed, happened upon a vanparked next to a shed.39 After playing in the van awhile, one of thechildren slid under the shed's locked door, found a small red31. See id. "Plaintiff lacks direct evidence that Enright disclosed herpregnancy and abortion to other Wal-Mart employees, and he flatly denies thisallegation." See id.32. See id. The court noted that one of plaintiff's roommates, also a co-worker, could have inferred the plaintiff's circumstances because the plaintiff"experienced frequent nausea during her pregnancy" and her roommates wereaware of that condition. See id. The court also considered the plaintiffs indiscreetuse of home pregnancy tests, her roommate's interaction with other Wal-Martemployees, and the fact that plaintiffs medical leave generated rumors. See id.33. See id.34. 592 N.W.2d 857 (Minn. 1999).35. See id. at 860.36. See id. at 862 (quoting William L. Prosser, Trespassing Children, 47 CAL. L.REv 427, 448 (1959)).37. See id. at 859.38. See id.39. See id.1348 [Vol. 26:44William Mitchell Law Review, Vol. 26, Iss. 4 [2000], Art. 18http://open.mitchellhamline.edu/wmlr/vol26/iss4/18TORT LA Wplastic gas tank, and decided to bring it into the van.40 The childstuck a piece of paper into the neck of the tank and lit it.4' The42paper burned for a short time, then the explosion occurred.Plaintiffs brought the instant suit to recover damages for theburns.43At the trial court, the jury found the defendant sixty percentS 44responsible. The defendants appealed and the court of appealsaffirmed, stating that all five elements of the law at issue weresupported by the evidence.45 In so holding, the court of appealscontinued its practice of applying a looser standard to Restatementsection 339(a), merely requiring the possessor to know of thechildren to be in the vicinity of the dangerous condition.46 Thedefendants appealed claiming that the court of appeal's standarddoes not comport with the law because it did not require thedefendants to know or have reason to know that children mighttrespass at the place of the dangerous condition.47 The MinnesotaSupreme Court agreed with the defendants.8In its analysis, the court noted generally that possessors of landowe no duty to trespassers.49 The narrow exception to this rule40. See id.41. See id.42. See id.43. See id.44. See id.45. See id. at 860. The Restatement (Second) Of Torts section 339 reads:A possessor of land is subject to liability for physical harm to childrentrespassing thereon caused by an artificial condition upon the land if: (a)the place where the condition exists is one upon which the possessorknows or has reason to know that children are likely to trespass, and (b)the condition is one of which the possessor knows or has reason to knowand which he realizes or should realize will involve an unreasonable riskof death or serious bodily harm to such children, and (c) the childrenbecause of their youth do not discover the condition or realize the riskinvolved in intermeddling with it or in coming within the area madedangerous by it, and (d) the utility to the possessor of maintaining thecondition and the burden of eliminating the danger are slight ascompared with the risk to children involved, and (e) the possessor fails toexercise reasonable care to eliminate the danger or otherwise to protectthe children.RESTATEMENT (SECOND) OFToRTs § 339 (1977).46. See Croaker, 592 N.W.2d at 862.47. Seeid. at 861.48. See id.49. See id.2000] 13495Decker: A Survey of Recent Developments in the Law: Tort LawPublished by Mitchell Hamline Open Access, 2000WILLIAM MITCHELL LAW REVIEWrequires that five specific conditions must be met before a dutyarises. 50 The court held that "[o] ur past decisions make it clear thatwe strictly construe the requirement that the possessor of landknow or have reason to know that children are likely to trespass."5 'As a result, the Minnesota Supreme Court reversed the court of51appeal's holding. Instead, the Minnesota Supreme Court strictlyapplied the language of section 339(a), thereby requiring thedefendant's knowledge or reason to have knowledge that the51children were likely to trespass on the defendant's property.Therefore, the defendants owed the plaintiffs no duty simplybecause the defendants knew children to be "in the vicinity" of thedangerous condition.54C. Legal Malpractice Statute of LimitationsThe occurrence-based statute of limitations for legalmalpractice claims is alive and well after Herrmann v. McMenomy &Severson. Resisting a nudge from the court of appeals to a adopt a"discovery rule" statute of limitations, 56 the Minnesota SupremeCourt continued its long history of ruling that the statute oflimitations for legal malpractice begins to run "at the time of thefirst prohibited transaction" made by the plaintiffs upon theattorney's advice.57In Herrmann, plaintiff sued after he incurred significant federalexcise taxes and interest from a prohibited transaction581recommended to him by the defendants, a law firm. Plaintiffentered into the prohibited transaction on October 7, 1987, andbecame aware of its prohibited nature in May of 1993.' 9 On May10, 1996, the IRS assessed the penalties and on October 31, 1996,the client filed suit. 6050. See id. at 862.51. Id.52. See id. at 862 n.4.53. See id. at 862-63.54. See id.55. 590 N.W.2d 641 (Minn. 1999).56. "Under the discovery rule, the statute of limitations begins to run on thedate when the plaintiff knew or should have know of the existence of the cause ofaction." Id. at 643 n.16.57. See id. at 644.58. See id. at 642.59. See id.60. See id.1350 [Vol. 26:46William Mitchell Law Review, Vol. 26, Iss. 4 [2000], Art. 18http://open.mitchellhamline.edu/wmlr/vol26/iss4/18TORT LA WThe district court granted the defendant's summary judgmentmotion finding that the action accrued in 1987 and thus was time-barred due to Minnesota's six-year statute of limitations for legalS 61malpractice claims. The court of appeals reversed, finding thatthe action did not accrue until 1993 because "the statute oflimitations does not begin to run until the harm manifests itself insome form or the client otherwise suffers pecuniary lOSS.61On appeal, the Minnesota Supreme Court refused theMinnesota Court of Appeals "adopt[ion of a] discovery rule fordetermining when the statute of limitations begins to run for legal• . 1 • 63malpractice action based on negligent advice." The plaintiffargued "that it would be unfair to commence the running of thatstatute of limitations before 1993... because [he] did not have anyknowledge of the illegality of the transactions . . . . 64 Nonetheless,the Minnesota Supreme Court stated it has a long history of"declining to adopt the discovery rule ... and neither [theplaintiffs] argument nor the court of appeal's decision provide anyjustification for [adopting a discovery rule] now.,65D. Negligence-Duty to ProtectIn Gilbertson v. Leininger,66 the Minnesota Supreme Court heldthat hosts did not have a special relationship with a houseguest and67owed no duty to protect her from harm. In Gilbertson, threefriends (the plaintiff and two defendants) had a Thanksgivingdinner at the defendants' home. Over the course of the evening,the plaintiff consumed one bottle of wine and one beer.69 Theplaintiff stayed overnight on the defendants' couch and in themorning the defendants noticed that the plaintiff had some dried70blood under her nose. In addition, the defendants noticed that61. See id.62. See Herrmann v. McMenomy & Severson, 583 N.W.2d 283, 292 (Minn. Ct.App. 1998), rev'd, 590 N.W.2d 641 (Minn. 1941).63. Herrmann, 590 N.W.2d at 643.64. Id.65. Id.66. 599 N.W.2d 127 (Minn. 1999).67. See id. at 130-32. The court implied that if the injury were apparent andthe defendants were not reasonable in their care, then a legal duty would arise.See id. at 131-32 n.2.68. See id. at 128.69. See id. at 129.70. See id.2000]7Decker: A Survey of Recent Developments in the Law: Tort LawPublished by Mitchell Hamline Open Access, 2000WILLIAM MITCHELL LAW REVIEWthe plaintiff had both urinated and defecated in her pants." A fewhours later the defendants noticed some blood on the pillow andblanket that the plaintiff had used.72 Another few hours passed andthe plaintiff had still not cleaned herself.7 3  At this time thedefendants began to worry that something was wrong and called anurse.74 The nurse told them not to worry, but the defendantscalled 911 a short time later.75 The plaintiff was diagnosed with asubdural hematoma and a skull fracture.76The plaintiff filed suit against the defendants, claiming thatthey owed her a duty of protection after she was injured.7 7 A juryagreed and the court of appeals affirmed. On appeal, the courtfound that the defendants did not have a special relationship withthe plaintiff and, therefore, owed her no duty. 79 The court notedthat "[a] person generally has no duty to act for the protection ofanother [and t] he existence of a legal duty to act depends on twofactors: (1) the relationship of the parties, and (2) the forseeabilityof the risk involved."° In order to find a relationship satisfying thefirst element, "it must be assumed that the harm to be prevented bythe defendant is one that 'the defendant is in a position to protectagainst and should be expected to protect against.'The plaintiff claimed that she placed herself in thedefendants' custody and thus was deprived of normal opportunitiesfor self-protection. 82  The court disagreed, finding that thedefendants did not have physical custody of plaintiff nor did they83accept responsibility for plaintiff's health . In addition, the courtstated that the defendants could not be expected to detect theseriousness of the problem and thus call for help much soonerbecause they had no medical training. As a result, the court held71. See id.72. See id.73. See id.74. See id.75. See id. at 129-30.76. See id. at 130.77. See id. at 128.78. See id.79. See id.80. Id. at 130.81. See id. at 131 (quoting Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168(Minn. 1989)).82. See id. at 131.83. See id.84. See id.1352 [Vol. 26:48William Mitchell Law Review, Vol. 26, Iss. 4 [2000], Art. 18http://open.mitchellhamline.edu/wmlr/vol26/iss4/182000] TORT LAW 1353that no special relationship existed to give rise to a duty to85protect.Kevin M. Decker85. See id. at 132.9Decker: A Survey of Recent Developments in the Law: Tort LawPublished by Mitchell Hamline Open Access, 200010William Mitchell Law Review, Vol. 26, Iss. 4 [2000], Art. 18http://open.mitchellhamline.edu/wmlr/vol26/iss4/18

A Survey of Recent Developments in the Law: Tort Law

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A Survey of Recent Developments in the Law: Tort Law

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