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AMI420Issues—Claim for Damages Based Upon Invasion of Privacy by Intrusion Upon Seclusion

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 420
Arkansas Model Jury Instructions-Civil
November 2020 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 4. Intentional Torts and Defamation
AMI 420 Issues—Claim for Damages Based Upon Invasion of Privacy by Intrusion Upon Seclusion
(Plaintiff) claims damages from (defendant) for invasion of privacy by intrusion upon (plaintiff)'s seclusion and has the burden of proving each of five essential propositions:
First, that (plaintiff) sustained damages;
Second, that (defendant) intentionally intruded physically or otherwise upon (plaintiff)'s solitude or seclusion and believed or was substantially certain that [he][she] lacked the necessary legal authority or personal permission, invitation, or valid consent to commit the intrusive act;
Third, that the intrusion was of a kind that would be highly offensive to a reasonable person, as the result of conduct to which a reasonable person would strongly object;
Fourth, that (plaintiff) conducted [himself][herself] in a manner consistent with an actual expectation of privacy; and
Fifth, that (defendant)'s intrusion was a proximate cause of (plaintiff)'s damages.
[If you find from the evidence in this case that each of these propositions has been proved, then your verdict should be for (plaintiff); but if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for (defendant)].
NOTE ON USE
Do not use the final bracketed paragraph when the case is submitted on interrogatories.
COMMENT
The elements of this instruction were quoted with approval in Coombs v. J.B. Hunt Transp., Inc., 2012 Ark. App. 24, at 4–5 (reversing a summary judgment in favor of defendant employer and two supervisors on intrusion upon seclusion claim that arose from plaintiff employee's sharing of a hotel room with his supervisor on a business trip).
An intrusion upon seclusion claim was submitted to the jury, which returned a verdict in favor of plaintiff, in Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002) (the employer defendant intruded upon the employee plaintiff's solitude in searching his home and shop for allegedly stolen merchandise, exceeding the scope of the consent to search obtained). See also Fletcher v. Price Chopper Foods of Trumann, Inc., 220 F.3d 871 (8th Cir. 2000) (reversing jury's verdict for plaintiff on her claim of intrusion upon seclusion, determining that defendant employer did not intrude in a highly offensive manner and that plaintiff lacked a reasonable expectation of privacy in the information); Williams v. Am. Broad. Cos., 96 F.R.D. 658, 669 (W.D. Ark. 1983) (distinguishing the four forms of invasion of privacy: intrusion upon seclusion (AMI 420), disclosure of private facts (AMI 422), placing in a false light, (AMI 423) and appropriation of name or likeness (AMI 421)); CBM of Cent. Ark. v. Bemel, 274 Ark. 223, 623 S.W.2d 518 (1981) (determining that, based on plaintiff debtor's testimony that an agency made repeated calls to her at her home and place of employment, the jury could have found a wrongful invasion of privacy); Restatement (Second) of Torts § 652B (1977).
Relying on Ward v. Blackwood, 41 Ark. 295, 298 (1883), as well as the Restatement (Second) of Torts § 652I (1977), the court in Cannady v. St. Vincent Infirmary Med. Ctr., 2012 Ark. 369, at 8, held that the Arkansas survival statute, Ark. Code Ann. § 16-62-101, does not provide for the claim of invasion of privacy by intrusion upon seclusion to survive the death of the decedent.
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