Multimedia WMAZ, Inc. v. Kubach

*719Andrews, Judge,

dissenting.

Plaintiff sued defendant on the basis of invasion of privacy for damages resulting from the disclosure that he has AIDS to persons viewing the broadcast.

Defendant contends that, prior to the broadcast, plaintiff had waived his right to privacy by disclosing he has AIDS to numerous persons. The plaintiff’s invasion of privacy action was based on his claim that defendant publicly disclosed an embarrassing private fact about him — that he has Acquired Immune Deficiency Syndrome (AIDS). “There are at least three necessary elements for recovery under this theory: (a) the disclosure of private facts must be a public disclosure; (b) the facts disclosed to the public must be private, secluded or secret facts and not public ones; (c) the matter made public must be offensive and objectionable to a reasonable man of ordinary sensibilities under the circumstances.” Cabaniss v. Hipsley, 114 Ga. App. 367, 372 (151 SE2d 496) (1966).4

As to the second element, there was undisputed evidence that the fact plaintiff has AIDS had been disclosed to numerous persons prior to the broadcast. The plaintiff testified that the fact he has AIDS had been disclosed by him to nine of his friends; one daughter of a friend; three television employees involved in a previous broadcast; about ten members of an AIDS support group which he attended; six medical personnel including his personal physician and medical support staff; six family members including his mother, father, two sisters, brother-in-law and aunt; an unknown number of persons in local AIDS support organizations; other doctors and medical personnel who had treated him; and three persons with whom he had sexual relations. One of the plaintiff’s sisters, who lived out of state, testified that she disclosed plaintiff has AIDS to three of her bosses at work, several other friends at work, and to a number of personal friends outside of work. She testified it was not something she tried to keep secret, and that the plaintiff left disclosure up to her own good judgment. The plaintiff’s aunt testified that she disclosed plaintiff has AIDS to her mother, her son, and her brother-in-law. One of the plaintiff’s friends testified that he disclosed the plaintiff has AIDS to his three sisters, his brother, and to two of his friends. When questioned about how AZT treatment had affected his AIDS condition prior to the broadcast, the plaintiff testified in general terms that: “I had many young people coming and asking me, you know, why was I doing so well? *720How was I doing so well? And that’s one of the reasons I went on the show, because I wanted to let them know you can live with AIDS, you don’t have to die with AIDS. ...”

“The right of privacy . . . like every other right that rests in the individual, may be waived by him, or by any one authorized by him, or by any one whom the law empowers to act in his behalf, provided the effect of his waiver will not be such as to bring before the public those matters of a purely private nature which express law or public policy demands shall be kept private. This waiver may be either express or implied, but the existence of the waiver carries with it the right to an invasion of privacy only to such an extent as may be legitimately necessary and proper in dealing with the matter which has brought about the waiver. It may be waived for one purpose and still asserted for another; it may be waived in behalf of one class and retained as against another class; it may be waived as to one individual and retained as against all other persons.” Pavesich v. New England Life Ins. Co., 122 Ga. 190, 191 (8), 199 (50 SE 68) (1905). “[T]o whatever degree and in whatever connection a man’s life has ceased to be private[,] to that extent the protection is to be withdrawn.” (Citation and punctuation omitted.) Cabaniss, supra at 374.

It is undisputed that the plaintiff’s disclosure of his AIDS condition to certain classes of persons such as medical personnel involved with plaintiff’s treatment was done with an expectation that confidentiality is required and that any further disclosure by these persons would be strictly limited to others properly concerned with the plaintiff’s medical treatment. See OCGA § 24-9-47 (disclosure of AIDS confidential information). There is no waiver of the right to privacy when disclosure of a private fact is limited to persons or a class of persons who are required by law or public policy to keep the disclosure private. Pavesich, supra. Moreover, it is possible for a person to only partially waive his right to privacy by, for example, waiving his entire right to privacy as to one fact but retaining it in full as to other private facts or by limiting disclosure of a private fact to a certain class of persons and retaining a privacy right in the same fact as to all others. See Doe v. Sears, 245 Ga. 83, 87 (263 SE2d 119) (1980).

This case deals with the plaintiff’s contention that he limited the disclosure of the private fact that he has AIDS to a certain class or group of persons and retained a right of privacy in that fact as to other persons who saw him identified as an AIDS patient on the broadcast. By definition, the plaintiff’s AIDS condition had been disclosed prior to the broadcast to only a “class” of persons, since not everyone knew he had AIDS. However, the evidence in this case shows that the “class” of persons who knew the plaintiff had AIDS included the plaintiff’s immediate family members, a group of extended family members, members of plaintiff’s AIDS support group *721who apparently had signed an agreement of confidentiality, friends of the plaintiff and those with whom he was sexually involved, family members and friends of one of plaintiff’s friends, an indefinite number of persons involved with AIDS support organizations, an indefinite number of co-workers and personal friends of one of the plaintiff’s family members, and the “many young people” referred to by the plaintiff who inquired about his ability to live with AIDS during his AZT therapy. While indicating that he had concerns about disclosure of his AIDS condition because of potential adverse public reaction, the plaintiff testified he was not ashamed of the fact that he had AIDS, and that he “told my friends as it came about for whatever reason it came about.” There was evidence the plaintiff told a family member to exercise her own discretion in disclosing his condition.

It need not be decided here to what extent certain immediate family members or others included in the “class” who knew the plaintiff had AIDS, are persons bound by law or public policy to maintain confidentiality. Whether or not the plaintiff expected those he told not to tell others, and whether or not those he told breached a duty not to further disclose his AIDS condition, is not the issue in this case. Here, the plaintiff seeks to recover money damages against the defendant for disclosing his AIDS condition to the broadcast audience based on a claim that his condition was a private, secret or secluded fact, not a public fact. The issue here is whether or not the plaintiff’s secret had been made public prior to the broadcast, regardless of how it was disclosed. The majority focuses on those persons whom the plaintiff personally told he had AIDS and the plaintiff’s expectation that they would not indiscriminately further disclose this fact. This ignores evidence that, rightly or wrongly, those he told, told numerous other persons of the plaintiff’s condition, with the result that, with or without the plaintiff’s permission, an indefinitely large number of persons knew of the plaintiff’s AIDS condition.

The evidence shows that as a result of disclosures made directly by the plaintiff, or subsequent disclosures made by persons he told, a large, indefinite number of persons, not required by law or public policy to maintain confidentiality, knew the plaintiff had AIDS. The ini-' tial and subsequent disclosures set in motion a progression of further disclosures to an expanding “class” of persons. Obviously, the broadcast identified the plaintiff as an AIDS patient to persons outside this “class” who did not previously know. Nevertheless, the number of persons who knew in relation to the number who did not know is not controlling in this case. The crux of the matter is that disclosure of his condition had been made by the plaintiff or others to a sufficient number of persons not bound by law or public policy to maintain privacy, such that the plaintiff voluntarily relinquished, or by disclosures made by others, involuntarily forfeited, any expectation that his *722AIDS condition was a secret. In other words, although the disclosures were limited to a “class” of persons in the sense that disclosures had not previously been made to all the people who saw the plaintiff identified on the broadcast, the persons who knew prior to the broadcast did not constitute a “class” of persons to whom disclosure was a limited waiver of the right to privacy, since it included a large, indefinite number of persons in which the plaintiff had no legitimate expectation of confidentiality. The numerous disclosures, made or set in motion by the plaintiff, introduced the private fact that he has AIDS into the public domain such that he could not have had any reasonable expectation that this fact remained a private matter. There is a point of disclosure beyond which a matter is no longer private in any reasonable sense even though everyone does not know about it. Since that point of public disclosure was clearly reached in the present case prior to the broadcast, I conclude, as a matter of law, that the plaintiff wholly waived a right to privacy in his AIDS condition and retained no right of privacy as to those in the broadcast audience who did not know he had AIDS at the time of the broadcast. See Cummings v. Walsh Constr. Co., 561 FSupp. 872 (S.D. Ga. 1983).

Nevertheless, I conclude the plaintiff has a cause of action in this case apart from a common law claim for invasion of privacy. It is clear that the defendant television station agreed that it would conceal the plaintiff’s identity when he appeared on the broadcast so that his identity as an AIDS patient would not be revealed to viewers who did not know he had AIDS. Even though the defendant had no duty not to violate the plaintiff’s common law right to privacy as to this fact, since none existed, the defendant voluntarily undertook a duty to conceal the plaintiff’s identity as an AIDS patient from disclosure to viewers of the program. “[0]ne who undertakes to do an act or perform a service for another [, and thereby induces reliance,] has the duty to exercise care, and is liable for injury resulting from his failure to do so, even though his undertaking is purely voluntary or even though it was completely gratuitous, and he was not under any obligation to do such act or perform such service, or there was no consideration for the promise or undertaking sufficient to support an action ex contractu based thereon.” (Citations and punctuation omitted.) McGinty v. Goldens’ Foundry &c. Co., 208 Ga. App. 248, 250 (430 SE2d 185) (1993); Stelts v. Epperson, 201 Ga. App. 405, 407 (411 SE2d 281) (1991); Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 835-836 (331 SE2d 899) (1985). By virtue of the defendant’s undertaking to conceal the plaintiff’s identity, and the plaintiff’s reliance on this undertaking, a duty arose for the defendant to carefully perform this task, the violation of which would support a cause of action for damages similar to those flowing from an invasion of privacy action resulting from the defendant’s failure to perform.

*723Although the pre-trial order entered in the case states that the plaintiff’s cause of action is based on the tort of invasion of privacy, the plaintiff’s allegations in the pre-trial order, liberally construed, and the evidence on which the case was tried, were sufficient to embrace a tort action based on the above duty assumed by the defendant. Cooper v. Rosser, 232 Ga. 597, 598 (207 SE2d 513) (1974); Fussell v. Carl E. Jones Dev. Co., 207 Ga. App. 521, 522-523 (428 SE2d 426) (1993). However, the trial judge charged the jury that the case was based solely on the tort of invasion of privacy, and followed with extensive instructions on the law applicable to the tort of invasion of privacy. Although a short charge was given that the defendant had a duty to diligently carry out any promise it made not to reveal the plaintiff’s identity, this instruction was given within the context of the instructions regarding invasion of privacy. Accordingly, this case was submitted to the jury solely on the theory of invasion of privacy, which was inapplicable as a matter of law, since the plaintiff had waived the privacy right he asserted.

The defendant moved for a directed verdict on the invasion of privacy action on grounds other than waiver, and subsequently made a motion for j.n.o.v. based on the grounds previously raised and waiver, which was denied by the trial court. The denial of j.n.o.v. on the waiver issue was enumerated as error on appeal. Grounds asserted in a motion for j.n.o.v. which were not asserted in a motion for directed verdict will not be considered on appeal. OCGA § 9-11-50 (b); Famiglietti v. Brevard Med. Investors, Ltd., 197 Ga. App. 164, 167 (397 SE2d 720) (1990). Nevertheless, in addition to error claimed in the denial of its motion for directed verdict on grounds other than the waiver issue, the defendant also enumerated error in the denial of its motion for a new trial on the basis that the verdict was contrary to law, the evidence and principles of equity and justice. Although there was some evidence upon which the jury might have based a proper verdict on a cause of action alleging the defendant assumed and breached a duty not to disclose the plaintiff’s identity, it is clear in light of the trial court’s charge that the case was not submitted to the jury on the basis of this evidence nor was the verdict based on this cause of action. Rather, it was based on the evidence and law relating to a cause of action for invasion of privacy. Since the verdict was based on the erroneous legal theory of invasion of privacy, the defendant was entitled to a new trial. See England v. Georgia-Florida Co., 198 Ga. App. 704, 705 (402 SE2d 783) (1991); Dept. of Transp. v. Fru-Con Constr. Corp., 206 Ga. App. 821, 825 (426 SE2d 905) (1992); Bank South Mtg. v. Starr, 208 Ga. App. 19 (429 SE2d 700) (1993) (motion for new trial reaches errors of law and fact contributing to the rendition of the verdict).

I am authorized to state that Presiding Judge McMurray and *724Presiding Judge Birdsong join in this dissent.

Decided March 18, 1994 Reconsideration denied April 1, 1994. Jones, Cork & Miller, Hubert C. Lovein, Jr., Howard J. Strickland, Jr., for appellant. Karen K. Daniels, Cooper & Rumsey, Lawrence A. Cooper, for appellee.

On Motion for Reconsideration.

During the pendency of defendant’s motion for reconsideration, defendant filed a suggestion of Buddy Worth’s death, and plaintiff voluntarily substituted Barbara Kubach, Buddy Worth’s legal representative. Kubach is hereby substituted as a party to this appeal. Thus, the style of this appeal has changed. Apart from this modification, our opinion remains the same and defendant’s motion for reconsideration is denied.

That first element is undisputed here in that the disclosure that plaintiff has AIDS took place by means of a television broadcast to the general viewing public within the broadcast area. As to the third element, the parties do not raise the issue, and it is assumed for present purposes that public disclosure that the plaintiff has AIDS would be “offensive and objectionable to a reasonable man of ordinary sensibilities.” Cabaniss, supra at 372.