Chapter 14 - § 14.3 • COMMON LAW PRIVACY CLAIMS

• Jurisdiction: Colorado

§ 14.3 • COMMON LAW PRIVACY CLAIMS

§ 14.3.1—Generally

The Colorado Supreme Court first adopted the common law right of privacy in its decision in Rugg v. McCarty, 476 P.2d 753 (Colo. 1970). In Rugg, the Colorado Supreme Court considered whether harassing conduct by a debt collection agency entitled the plaintiff to damages for an invasion of privacy. Id. In doing so, the supreme court recognized the viability of the invasion of privacy tort in Colorado. Id. at 775. The court recognized the tort because the Colorado General Assembly had previously recognized a right of privacy in connection with its wiretapping and eavesdropping statute, C.R.S. § 40-4-33, and because, as of 1970, at least 32 other jurisdictions had recognized a common law tort of invasion of privacy and three other states had done so by statute. Id. The court did not, however, "attempt to comprehensively define the right of privacy, nor to categorize the character of all invasions which may constitute a violation of such right." Id. Having recognized that tort, the court then found that the plaintiff's allegations of harassing collection techniques could state a claim for invasion of privacy. Id. at 756.

While the Colorado courts do not consider themselves bound by the Restatement (Second) of Torts, they have stated that "a court may apply sections of the restatements as a formulation of the law that is applicable to the issue before the court." Grease Monkey Int'l, Inc. v. Montoya, 904 P.2d 468, 470 n. 2 (Colo. 1995). See also Roe v. Cheyenne Mtn. Conference Resort, Inc., 124 F.3d 1221, 1236 (10th Cir. 1997). With respect to the invasion of privacy, Section 652A of the Restatement (Second) of Torts provides:

(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 . . . or
(b) appropriation of the other's name or likeness . . . or
(c) unreasonable publicity given to the other's private life . . . or
(d) publicity that unreasonably places the other in a false light before the public.

§ 14.3.2—Intrusion Upon Seclusion

Formal recognition of this tort is of relatively recent vintage. In Doe v. High-Tech Institute, 972 P.2d 1060 (Colo. App. 1998), the Colorado Court of Appeals considered whether a school violated the privacy rights of a student in a medical assistant training program when it performed an unauthorized blood test that revealed the student's HIV status. In considering the plaintiff's allegations, the court expressly recognized that the privacy tort recognized in Ruggincluded a discrete claim for invasion of privacy based on intrusion upon seclusion. Id. at 1067. In doing so, the court noted that the vast majority of courts in other jurisdictions had recognized this tort. Id. It further noted that while the Colorado Supreme Court in Rugg did not label the privacy violation at issue as an intrusion upon seclusion, most courts consider a debt collector's repeated and harassing telephone calls to constitute an intrusion upon seclusion. Id.

After acknowledging the viability of that claim, the court endorsed the elements for proving such a claim adopted by other jurisdictions and under the Restatement (Second) of Torts, § 652B (1981). Id. Under that test, to establish the improper intrusion, a "plaintiff must establish that: (1) another person has intentionally intruded, physically or otherwise; (2) upon the plaintiff's seclusion or solitude; and (3) such intrusion would be offensive or objectionable to a reasonable person." Id.

The Doe court then held that the plaintiff had stated a claim for invasion of privacy based upon an intrusion upon seclusion. It noted that there is a generally recognized privacy interest in a person's body and in information regarding a person's health. Id. at 1068-69. It further held that the defendant's intrusion in testing the plaintiff's blood for HIV was unreasonable, even though the plaintiff had consented to a test for rubella. Id. at 1069-70. The court concluded that because of the social stigma attached to HIV status, under the circumstances, an unauthorized HIV test would be considered by a reasonable person as highly invasive, unreasonable, and offensive. Id. at 1070-71.

As with so many employment claims, the law defining this claim evolved originally and most significantly in the federal courts. The most significant decisions were made before the claim was recognized by a Colorado court. To date, those decisions remain consistent with the few decisions issued by the Colorado state...