IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
OCTOBER 5, 2000 Session
DAVID ROBERTS v. ESSEX MICROTEL ASSOCIATES, II, L.P. d/b/a/
MICROTEL-KINGSPORT, ET AL.
Appeal from the Circuit Court for Sullivan County
No. C-32311 Hon. Richard E. Ladd, Chancellor
FILED NOVEMBER 27, 2000
No. E2000-01356-COA-R3-CV
Plaintiff registered as a guest at Defendant’s hotel. For various reasons, the desk clerk asked to see
Plaintiff’s driver license. Plaintiff produced his driver license for inspection by the desk clerk. For
those same reasons, the desk clerk later telephoned the police. She provided the 911 police
dispatcher with certain information from Plaintiff’s driver license. With this information, the police
discovered that an individual with the same date of birth and a similar name was wanted in Florida
on a narcotics trafficking charge. The police came to the hotel, questioned Plaintiff, and then took
Plaintiff into custody. After detaining Plaintiff at the police station for two hours, the police
determined that Plaintiff was not the suspect wanted in Florida and returned Plaintiff to the hotel.
Plaintiff sued the hotel owner and the desk clerk for malicious prosecution, wrongful arrest, false
imprisonment and invasion of privacy, but later proceeded only on the invasion of privacy and false
imprisonment counts. The Trial Court granted Defendants’ Motion for Summary Judgment. We
affirm.
Tenn. R. App. 3; Judgment of the Circuit Court Affirmed; Case Remanded.
D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HOUSTON M. GODDARD , P.J.,
joined. CHARLES D. SUSANO, JR., J., filed a concurring in part and dissenting in part opinion.
Larry V. Roberts, Kingsport, Tennessee, for the Appellant David Roberts.
H. Wayne Graves, Johnson City, Tennessee, for the Appellee Essex Microtel Associates, II.
OPINION
Background
On the evening of February 10, 1997, Plaintiff, David Allan Roberts, registered as a guest
at Microtel-Kingsport, a hotel owned and operated by Defendant, Essex Microtel Associates, II
(“Microtel”). Defendant Carmen Allen was the desk clerk at the hotel and was the only employee
on the premises. Plaintiff completed the registration card, providing his name and address. Ms.
Allen asked Plaintiff for his driver license, which he willingly provided. Ms. Allen testified that
when she made a photocopy of the license, Plaintiff became disgruntled and allegedly commented
to the effect that he supposed Ms. Allen had copied his driver license so that she could call “the
authorities” and tell them his whereabouts. Plaintiff testified that he was joking. He also testified
that he was unaccustomed to having his driver license photocopied when registering at hotels.
Microtel’s general manager testified that, indeed, it was not Microtel’s policy to photocopy driver
licenses unless the registering guest paid with cash.1 In this case, however, Ms. Allen thought
Plaintiff was very rude and his behavior strange. Plaintiff neither used profanity nor physically or
verbally threaten Ms. Allen, but she thought he was unusually angry. Ms. Allen testified that she
was concerned for the safety and welfare of the other guests. After Plaintiff left the registration area
and went to his room, Ms. Allen telephoned the Kingsport Police Department. Although it was
Microtel’s policy not to disclose personal information obtained from guests during check-in, she
ignored that policy in this instance because she thought Plaintiff was acting strange. She told the
police dispatcher that she had checked in a person who was acting strange, and provided the
dispatcher with Plaintiff’s name, address, date of birth, height, weight, eye color and Virginia driver
license number, which is also his social security number.
When the police department received the call, the dispatcher checked police identification
sources and learned that a person by the name of Allen Roberts, with the same date of birth and
fitting Plaintiff’s general physical description, had criminal charges involving narcotics trafficking
outstanding in Florida. The recorded 911 call reveals that the police dispatcher commented to Ms.
Allen, “That’d be neat if we could find him, wouldn’t it? I mean, we’ve found him already, but if
he is wanted. You could say, ‘Well, you’ll learn to make smart ass remarks to me.’ ” Ms. Allen
replied, “Really. I mean really he was really, really rude and I just thought you know.”
The Kingsport Police Department dispatched two uniformed officers to the hotel to
investigate whether Plaintiff was the suspect wanted in Florida. The police officers went to
Plaintiff’s room and knocked on the door. Plaintiff voluntarily admitted the officers to his room and
cooperatively answered their questions about whether he had ever lived in Florida. When they
confirmed that his physical description matched that of the suspect and learned that he once had lived
in Florida, they placed him in handcuffs and took him to police headquarters in a police cruiser. Two
hours later, after the Florida authorities faxed a fingerprint of the suspect to Kingsport Police and it
did not match Plaintiff’s fingerprint, the police officers concluded that Plaintiff was not the Florida
suspect and took him back to the hotel. Ms. Allen, who was still on duty at the registration desk at
1
The photocopying of driver licenses for cash customers was done so that the customer could be located in the
event he caused loss or damage to the room.
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the hotel, telephoned Plaintiff’s room and apologized to Plaintiff for the inconvenience. Plaintiff
told her that he intended to contact his attorney about the incident. Ms. Allen testified that she then
became upset because she had not intended for Plaintiff to be arrested.
Plaintiff filed this suit in Sullivan County Circuit Court, seeking compensatory and punitive
damages against Microtel and Ms. Allen for malicious prosecution, wrongful arrest, false
imprisonment and invasion of privacy. Microtel answered that any responsibility for negligence,
wrongful arrest, or invasion of privacy would lie with the Kingsport Police Department. Microtel
further answered that the Complaint failed to state a claim upon which relief could be granted, and
asked that it be dismissed. A pretrial conference was held on June 25, 1999. On October 12, 1999,
Defendants filed an Alternative Motion to Dismiss or for Summary Judgment, accompanied by the
affidavits of the two Kingsport Police Officers2 and a Memorandum of Law. On December 13,
1999, Plaintiff filed a Response, accompanied by a transcript of the police dispatch recording, the
affidavit of the dispatcher attesting that the transcript was accurate, and a Memorandum of Law. The
Motions were heard by the Trial Court on December 10, 1999, at which time Plaintiff announced
that he intended to proceed only on his theories of invasion of privacy and false imprisonment. After
reviewing the record, including the depositions of Plaintiff, Defendant Ms. Allen and the Microtel
General Manager, and hearing arguments of counsel, the Trial Court found that there were no
genuine issues as to any material fact and that Defendants were entitled to judgment in their favor
as a matter of law. Plaintiff’s Complaint was dismissed.
Discussion
Plaintiff appeals the judgment of the Trial Court and raises these issues:
1. Has Tennessee adopted the common law invasion of privacy
tort as set forth in Restatement 2d Torts, § 652 A, B, C, D, E
and H; specifically § 652 B.
2. If the answer to issue 1 is “yes”, did the Trial Court err in
finding no genuine issue of material fact to support the
Plaintiff’s claim for invasion of privacy under Restatement 2d
Torts, § 652 B?
3. If the answers to issues 1 and 2 are both “yes”, what damages
is the Plaintiff entitled to recover for invasion of privacy?
4. Did the Trial Court err in finding no genuine issue of material
fact to support the Plaintiff’s claim for false imprisonment?
2
Although the two officers stated that P laintiff was not under arrest at the time he was taken to police
headquarters, the Trial Court struck those paragraphs from the affidavits because it is undisputed that Plaintiff was
handcuffed by the police, placed in a police cruiser, and taken to the police station for questioning.
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The standards governing an appellate court’s review of a motion for summary judgment are
well settled:
Since our inquiry involves purely a question of law, no presumption of
correctness attaches to the lower court’s judgment, and our task is confined to
reviewing the record to determine whether the requirements of Tenn. R. Civ. P. 56
have been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997); Cowden
v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991). Tennessee Rule
of Civil Procedure 56.03 provides that summary judgment is appropriate where: (1)
there is no genuine issue with regard to the material facts relevant to the claim or
defense contained in the motion, see, Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.
1993); and (2) the moving party is entitled to a judgment as a matter of law on the
undisputed facts. See Anderson v. Standard Register Co., 857 S.W.2d 555, 559
(Tenn. 1993). The moving party has the burden of proving that its motion satisfies
these requirements. See Downen v. Allstate Ins. Co., 811 S.W.2d 523, 524 (Tenn.
1991). When the party seeking summary judgment makes a properly supported
motion, the burden shifts to the nonmoving party to set forth specific facts
establishing the existence of disputed, material facts which must be resolved by the
trier of fact. See Byrd v. Hall, 847 S.W.2d at 215.
To properly support its motion, the moving party must either affirmatively negate an
essential element of the non-moving party’s claim or conclusively establish an
affirmative defense. See McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588
(Tenn. 1998); Robinson v. Omer, 952 S.W.2d 423. 426 (Tenn. 1997). If the moving
party fails to negate a claimed basis for the suit, the non-moving party’s burden to
produce evidence establishing the existence of a genuine issue for trial is not
triggered and the motion for summary judgment must fail. See McCarley v. West
Quality Food Serv., 960 S.W.2d at 588; Robinson v. Omer, 952 S.W.2d at 426. If the
moving party successfully negates a claimed basis for the action, the non-moving
party may not simply rest upon the pleadings, but must offer proof to establish the
existence of the essential elements of the claim.3
The standards governing the assessment of evidence in the summary
judgment context are also well established. Courts must view the evidence in the
light most favorable to the nonmoving party and must also draw all reasonable
inferences in the nonmoving party’s favor. See Robinson v. Omer, 952 S.W.2d at
426; Byrd v. Hall, 847 S.W.2d at 210-11. Courts should grant a summary judgment
only when both the facts and the inferences to be drawn from the facts permit a
3
A non-moving party may satisfy his or her burden by (1) pointing to evidence overlooked or ignored by the
moving party that establishes a material factual dispute, (2) by rehabilitating the evidenc e attacked in the moving p arty’s
papers, (3) by producing ad ditional evidence showing the ex istence of a genuine issue for trial, o r (4) submitting an
affidavit explaining wh y further discov ery is necessary as provided for in Tenn. R. Civ. P. 56.06. See McC arley v. West
Quality F ood Se rv., 960 S.W .2d at 588 ; Byrd v. H all, 847 S.W.2d at 215, n. 6.
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reasonable person to reach only one conclusion. See McCall v. Wilder, 913 S.W.2d
150, 153 (Tenn. 1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).
Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 88 (Tenn. 2000).
Plaintiff first raises the issue of whether Tennessee has adopted the common law invasion
of privacy tort as described in the Restatement 2d Torts § 652 B. Plaintiff argues that if the tort is
cognizable in Tennessee, then there are genuine issues of material fact requiring a trial on the issue
of whether Defendants are liable to him for invasion of privacy under § 652 B, which provides:
One who intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another or his private affairs or concerns, is
subject to liability to the other for invasion of his privacy, if the
intrusion would be highly offensive to a reasonable person.
Comment:
A. The form of invasion of privacy covered by this Section does not
depend upon any publicity given to the person whose interest is
invaded or to his affairs. It consists solely of an intentional
interference with his interest in solitude or seclusion, either as to his
person or as to his private affairs or concerns, of a kind that would be
highly offensive to a reasonable man.
B. The invasion may be by physical intrusion into a place in which
the plaintiff has secluded himself, as when the defendant forces his
way into the plaintiff’s room in a hotel or insists over the plaintiff’s
objection in entering his home. It may also be by the use of the
defendant’s senses, with or without mechanical aids, to oversee or
overhear the plaintiff’s private affairs, as by looking into his upstairs
windows with binoculars or tapping his telephone wires. It may be
by some other form of investigation or examination into his private
concerns, as by opening his private and personal mail, searching his
safe or his wallet, examining his private bank account, or compelling
him by a forged court order to permit an inspection of his personal
documents. The intrusion itself makes the defendant subject to
liability, even though there is no publication or other use of any kind
of the photograph or information outlined.
C. The defendant is subject to liability under the rule stated in this
Section only when he has intruded into a private place, or has
otherwise invaded a private seclusion that the plaintiff has thrown
about his person or affairs. Thus there is no liability for the
examination of a public record concerning the plaintiff, or of
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documents that the plaintiff is required to keep and make available for
public inspection. Nor is there liability for observing him or even
taking his photograph while he is walking on the public highway,
since he is not then in seclusion, and his appearance is public and
open to the public eye. Even in a public place, however, there may
be some matters about the plaintiff, such as his underwear or lack of
it, that are not exhibited to the public gaze; and there may still be
invasion of privacy when there is intrusion upon these matters.
D. There is likewise no liability unless the interference with the
plaintiff’s seclusion is a substantial one, of a kind that would be
highly offensive to the ordinary reasonable man, as the result of
conduct to which the reasonable man would strongly object. Thus
there is no liability for knocking at the plaintiff’s door, or calling him
to the telephone on one occasion or even two or three, to demand
payment of a debt. It is only when the telephone calls are repeated
with such persistence and frequency as to amount to a course of
hounding the plaintiff, that becomes a substantial burden to his
existence, that his privacy is invaded.
Restatement (Second) of Torts § 652 B (1977).
Plaintiff asks this Court, “[s]ince it is unclear if the common law of invasion of privacy tort
has been formerly adopted in Tennessee, the Plaintiff requests a determination as to whether the tort
is recognized by Tennessee courts.” We hold that Tennessee has adopted the common law tort of
invasion of privacy.
The Tennessee Supreme Court, in Martin v. Senators, Inc., 220 Tenn. 465, 418 S.W.2d 660
(1967), considered the issue of whether invasion of privacy was an actionable tort in this jurisdiction.
The Martin Court cited Langford v. Vanderbilt University, 199 Tenn. 389, 401, 287 S.W.2d 32
(1956), in which our Supreme Court “assumed” the existence of the common law tort of invasion
of privacy and held that, in that case, it had been waived. Applying Langford, our Supreme Court
in Martin also assumed the existence of the common law tort, and again found waiver. This Court
then considered the same issue in Alley v. Cleveland, No. 03A01-9605-CV-00160, 1996 Tenn. Ct.
App. WL 605157, at *1 (Oct. 23, 1996). In that case, we held that, while the Tennessee Supreme
Court in both Martin and Langford had “. . . ‘assumed’ the action existed at common law, the cases
did not ‘assume without deciding the issue.’ ” See also, Tidman v. Salvation Army, No. 01A01-
9708-CV-00380, 1998 Tenn. Ct. App. WL 391765, at *2 (July 15, 1998) (“Although the Tennessee
courts earlier recognized the tort of invasion of privacy, Martin v. Senators, Inc., 220 Tenn. 465, 418
S.W.2d 660 (Tenn. 1967), this court more recently adopted Sec. 652A of the Restatement (Second)
of Torts as the basis for the action.”); Parr v. Middle Tennessee State University, No. M1999-01442-
COA-R3-CV, 1999 Tenn Ct. App. WL 1086451 at *2, (Dec. 3, 1999) (“. . . Tennessee courts do
recognize a cause of action for invasion of one’s privacy by another citizen.”)
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Having determined that Tennessee recognizes the tort of invasion of privacy, we next address
the issue of whether there are genuine issues of material fact requiring a trial on the issue of whether
Defendants are liable to Plaintiff for invasion of privacy. Plaintiff argues:
Defendant “Microtel” intentionally, through the actions of its
check-in clerk, Defendant Carmen Allen, undertook and
conducted an investigation into the private affairs of the
Plaintiff, which resulted in the Plaintiff being handcuffed,
arrested and imprisoned.
* * *
Although the Plaintiff willingly provided “Microtel” all
information requested by Defendant Carmen Allen, the
Plaintiff did not use profanity, and the Plaintiff did not
physically or verbally threaten anyone when he checked in at
the hotel.
Defendant Carmen Allen telephoned the Kingsport Police
Department approximately one (1) hour after the Plaintiff
checked in and agreed with the dispatcher it would be “neat”
to find something on the Plaintiff so she could tell the
Plaintiff “you’ll learn to make smart ass remarks to me.”
As a result of Defendant Carmen Allen telephoning the
police, the Plaintiff was arrested, handcuffed and imprisoned
for approximately two (2) hours at the Kingsport Police
Department.
Genuine issues of material fact exist as to whether the
“Microtel” check-in clerk’s conduct was reasonable, when the
Plaintiff checked in at the hotel. Therefore, summary
judgment is inappropriate.
This Court recently addressed a similar factual situation in Mays v. Fred’s, Inc., No. W1999-
02189-COA-R3-CV, 2000 Tenn. Ct. App. WL 53082, Jan. 10, 2000. In that case, Mays sued Fred’s,
Inc., after Mays visited Fred’s store to purchase a flashlight and was detained by the store security
guard, who suspected that Mays had shoplifted. The security guard detained Mays for thirty minutes
while he called the police, who then escorted Mays to a private room in the back of the store,
required her to fully undress, and searched her for stolen merchandise. None was found, and it was
later determined that a theft sensor tag had stuck to the bottom of Mays’ shoe. Mays brought suit
for false imprisonment, outrageous conduct, intentional infliction of emotional distress and invasion
of privacy. Fred’s argued that the summary judgment in its favor was proper because the store was
not legally responsible for the two hour detention that culminated in Plaintiff’s being strip-searched.
Fred’s had detained Mays for thirty minutes, and officers of the Memphis Police Department, rather
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than Fred’s employees, were responsible for holding Mays for the remainder of the time, and for
conducting the strip-search. In short, Fred’s argued that even if reasonable minds could differ as to
whether the detention and strip-search of Mays was reasonable, Fred’s still was not liable because
its employees did not cause the detention or the strip-search. Mays, on the other hand, asserted that
the detention, although conducted by the police officers, was done at the insistence of Fred’s store
manager. The trial court granted Fred’s motion for summary judgment. We affirmed, holding that
Fred’s in that case could not be held liable for the two hour detention and strip-search of Mays:
While one cannot help but sympathize with Ms. Mays, taking
her deposition testimony as true and casting all inferences in
her favor leads us to the conclusion that summary judgment
was properly granted in favor of Fred’s. At the most, Fred’s
store manager provided information to the police officer
which led the police to conduct the strip search. However, as
the Appellee points out, merely providing information to a
police officer will not render that person liable. Hertzka v.
Ellison, 8 Tenn. App. 667 (Tenn. Ct. App. 1928). Simply put,
even if it were determined that the detention and strip-search
were unreasonable, there is no factual basis upon which to
conclude that Fred’s is responsible.
Mays v. Freds, Inc., No. W1999-02189-COA-R3-CV, 2000 Tenn. Ct. App. WL 53082 at *3, Jan.
10, 2000.
Microtel’s employee, Ms. Allen, copied Plaintiff’s driver license, telephoned the police,
provided the information on the license to the police, and advised them of her concerns about
Plaintiff’s acting strange. At oral argument before this Court, although not in his appellate brief,
Plaintiff conceded that, if Defendants had merely telephoned the police without first copying
Plaintiff’s drivers’ license, Plaintiff would not have a cause of action for invasion of privacy.
Plaintiff argues that the invasion of privacy which led to the allegedly unreasonable action of the
police department was Ms. Allen’s act of copying his driver license. However, the Restatement 2d
of Torts comment explains:
C. The defendant is subject to liability under the rule
stated in this Section only when he has intruded into
a private place, or has otherwise invaded a private
seclusion that the plaintiff has thrown about his
person or affairs. Thus there is no liability for the
examination of a public record concerning the
plaintiff, or of documents that the plaintiff is required
to keep and make available for public inspection.
Restatement (Second) of Torts § 652 B (1977).
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Plaintiff is required to carry a driver license while driving, as are all drivers. Driver licenses
are routinely made available for public inspection, for example, when cashing a check or writing a
check for purchases or when paying cash at Microtel’s hotel. Plaintiff does not contend that he keeps
his driver license private in such instances. In fact, Plaintiff testified that he willingly provided his
driver license to Ms. Allen. It apparently is the copying of his license, which contained his social
security number, and providing that information to the police which Plaintiff finds offensive. Having
“willingly” furnished his driver license to Ms. Allen, Plaintiff cannot now claim Defendants “. . .
invaded a private seclusion that the [P]laintiff has thrown about his person or affairs.” We note that
Plaintiff’s social security number played no part in his arrest as the factual information resulting in
Plaintiff’s arrest after questioning by the police was his birth date, his name, his physical appearance,
and the fact that he had lived in Florida.
While there are disputes of fact in this record, such as whether Plaintiff was “joking” or
acting “strange” when he checked into the hotel, those disputed facts are not material to Plaintiff’s
cause of action for invasion of privacy. Ms. Allen furnished the police information willingly
provided by Plaintiff to her. As held by this Court in Mays, “. . . merely providing information to
a police officer will not render that person liable.” Mays at *5. Plaintiff “willingly” provided the
information to Ms. Allen and Ms. Allen conveyed that information to the police. Everything that
happened from that point forward was done by the police and not Defendants. In short, while
Tennessee does recognize the tort of invasion of privacy, the Trial Court properly held that there is
no genuine issue as to any material fact and that the Defendants are entitled to a judgment as a matter
of law on Plaintiff’s claim of invasion of privacy.
Plaintiff also raised the issue in his appellate brief that there were genuine issues of material
fact as to whether Defendants were liable for the tort of false imprisonment. Ms. Allen testified that,
when she telephoned the police, she did not know that Plaintiff would be arrested and did not intend
for him to be arrested. She did not know that a person with a similiar name with the same birth date
was wanted in Florida. When Plaintiff returned to the hotel after being taken to the police station
and questioned, Ms. Allen telephoned his room and apologized for the inconvenience. She was
upset because he had been arrested. Her testimony on these points is undisputed. The elements of
the tort of false imprisonment are (1) the detention or restraint of one against his will and (2) the
unlawfulness of such detention or restraint. Newsom v. Thalhimer Bros., Inc., 901 S.W.2d 365, 367
(Tenn. Ct. App. 1994). Defendant did not detain or restrain Plaintiff. Citing once again to this
Court’s Opinion in Mays, “. . . merely providing information to a police officer will not render that
person liable.” Mays at *5. This issue is without merit, and the decision of the Trial Court is
affirmed.
Conclusion
The judgment of the Trial Court is affirmed. This cause is remanded to the Trial Court for
such further proceedings as may be required, if any, consistent with this Opinion, and for collection
of the costs below. Costs on appeal are assessed against the Appellant, David Roberts and his surety.
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__________________________________________
D. MICHAEL SWINEY, JUDGE
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