Day on Torts
In Tennessee, a claim for invasion of privacy based on intrusion upon seclusion does not abate when the person whose privacy was invaded dies.
In Jones v. Life Care Centers of America d/b/a Life Care Center of Tullahoma, No. M2022-00471-SC-R11-CV, — S.W.3d — (Tenn. April 25, 2025), Ms. Jones was a resident of defendant nursing home and had impaired cognitive functioning. She required help with daily activities, including showering. While a certified nursing aide was helping Ms. Jones shower, the aide accepted a video call from her boyfriend, who was incarcerated. During the call, Ms. Jones’ nude body was visible in the background.
When Ms. Jones’ family was informed of this incident, they filed this invasion of privacy based on intrusion upon seclusion claim. The trial court granted the defendant’s motion for summary judgment, ruling that because Ms. Jones was unaware of the incident, the plaintiff could not show “actual injury or loss in the form of physical, mental or emotional injury.” While the case was pending in the trial court, Ms. Jones died.
On appeal, the Court of Appeals reversed the trial court and ruled that actual damages were not an essential element in an intrusion upon seclusion claim. When considering whether the invasion of privacy claim survived the death of Ms. Jones, the Court of Appeals ruled that it did. The Tennessee Supreme Court took up the issue of abatement of the claim on appeal and ultimately agreed that the claim survived.
The Supreme Court’s analysis focuses largely on Tennessee’s survival statute, Tenn. Code Ann. § 20-5-102, which states:
No civil action commenced, whether founded on wrongs or contracts, except actions for wrongs affecting the character of the plaintiff, shall abate by the death of either party, but may be revived; nor shall any right of action arising hereafter based on the wrongful act or omission of another, except actions for wrongs affecting the character, be abated by the death of the party wronged; the right of action shall pass in like manner as the right of action described in § 20-5-106.
The defendant asserted that a comment to the Restatement (Second) of Torts supported its argument that the intrusion upon seclusion claim did not survive Ms. Jones’ death. The Supreme Court, however, wrote that the Restatement comment reflected the common law, but that the survival statute changed the law in Tennessee. Because the intrusion upon seclusion alleged here was “a civil action that is founded on wrongs,” it did not abate under § 20-5-102.
The defendant also argued that intrusion upon seclusion was a tort affecting the character of the plaintiff, and that it accordingly did not survive the plaintiff’s death. The Court disagreed. The Supreme Court wrote that even though Ms. Jones was cognitively impaired, “she nevertheless had the right not to involuntarily have her nude body put on display,” and that she “retained that right irrespective of her character.” The Court pointed out that character is in no way related to the elements of this tort, as the plaintiff does not have to prove that the action “produced an effect or change upon the plaintiff’s character.” (internal citation omitted). Further, “the plaintiff’s character [cannot] provide the defendant with a defense to the claim.”
The Court concluded:
In sum, for an intrusion upon seclusion action, the plaintiff’s legal right does not involve her character; evidence of the plaintiff’s alleged low moral character provides no defense to the claim; and the plaintiff need not prove that the defendant’s violation of her right produced an injurious effect on the plaintiff’s character. Therefore, an action for intrusion upon seclusion is not one “for wrongs affecting the character of the plaintiff” and the exception to the survival statute does not apply to the Plaintiff’s claim against Life Care.
The ruling that the intrusion upon seclusion claim did not abate with Ms. Jones’ death was affirmed.
This opinion was released fourteen months after oral arguments.