dissenting.
I respectfully dissent from the majority opinion. I am not convinced that, as a matter of law, Doe has failed to establish the requisite "publicity" of a private fact. In my opinion, the degree of publicity required to prove the tort of invasion of privacy by public disclosure of private facts is a question of fact for the jury.
The majority relies upon a treatise and two decisions from other jurisdictions to hold that publicizing a private fact to a small group of coworkers is not "publicity" for purposes of invasion of privacy by public disclosure of private facts. It is true that many jurisdictions require disclosure to the public at large, not just a few people, in order to state an actionable claim for this type of invasion of privacy. However, other jurisdictions follow the rule that where (1) a plaintiff is not a public figure and (2) he has a special relationship with the "public" to whom the private fact is disclosed, the publicity requirement may be satisfied by disclosure to a particular public such as fellow employees, club members, church members and neighbors. See Beaumont v. Brown (1977), 401 Mich. 80, 257 N.W.2d 522, 531; Miller v. Motorola, Inc. (1990), 202 Ill. 976, 148 Ill.Dec. 303, 306, 560 N.E.2d 900, 903; see also McSurely v. McClellan (D.C.Cir.1985), 753 F.2d 88, 112, cert. denied, 474 U.S. 1005, 106 S.Ct. 525, 88 L.Ed.2d 457. Communication to the general public is not required because disclosure to those persons with whom the plaintiff has a special relationship may be just as devastating as disclosure to many. See Beaumont, 257 N.W.2d at 531; Miller, 560 N.E.2d at 903.
In Miller for example, an employer disclosed the fact of its employee's mastectomy to her fellow employees. Miller, 560 N.E.2d at 901. The trial court dismissed the employee's claim for invasion of privacy by public disclosure of private facts. Id. The II-nois Court of Appeals reversed and held that the employee's allegation that her medical condition was disclosed to her fellow employees "sufficiently satisfies the requirement that publicity be given to the private fact." Id. at 903.
Here, like the employee in Miller, the fact of Doe's medical condition was disclosed to his fellow employees. Doe's coworkers are a "public" with whom Doe has a special relationship and to whom disclosure of his HIV positive status would prove particularly embarrassing.1 See Beaumont, 257 N.W.2d at 531; Miller, 560 N.E.2d at 903. Thus, where such a special relationship exists between the plaintiff and those who learn of the embarrassing facts about him, the number of persons to whom the facts are disclosed is not dispositive.
Our courts should avoid the line drawing employed by the majority in this case in determining whether publicity has occurred for the tort of invasion of privacy by public disclosure of private facts. In our analysis we should not "attempt to numerically measure the persons to whom" Duncan disclosed Doe's HIV positive status. Beaumont, 257 N.W.2d at 529. Rather, the quantum of publicity required to prove this tort is a question of fact for the jury not appropriate for disposition on a motion for summary judgment. Id. at 532.
Gossip is commonplace in our society, and I agree with Dean Prosser's comment that the law should not put "a gag upon ordinary *687citizens." David E. Elder, The Law of Privacy § 8.3, at 158 n. 34 (quoting Dean Pros-ser's speech at the 1967 American Law Institute proceedings). I do not advocate limitless liability for every person in the chain of gossip who perpetuates the disclosure of a private fact about the plaintiff. However, the extent of Hability for subsequent disclosures addresses the second element of this tort that the disclosure must be made in a coercive and oppressive manner. See Kaletha v. Bortz Elevator Co. (1978), 178 Ind.App. 654, 658, 383 N.E.2d 1071, 1074, overruled on other grounds by Burks v. Rushmore (1989), Ind., 534 N.E.2d 1101, 1104; Patton v. Jacobs (1948), 118 Ind.App. 358, 365, 78 N.E.2d 789, 791, trans. denied. A jury should decide, applying contemporary social norms, whether a person who merely repeats the private fact should be held liable for invasion of privacy.
Accordingly, I would hold that Duncan's disclosure of Doe's HIV positive status to even one other employee in Doe's workplace presents a question of material fact as to whether this private fact about Doe was "publicly" disclosed in order to establish invasion of privacy. Summary judgment for Duncan should be reversed and this cause be remanded for a trial on Doe's claim for invasion of privacy by public disclosure of private facts.
. This court has previously observed that a person's HIV positive status is a "sensitive matter" affecting a person's interest in privacy. See R.E.G. v. L.M.G. (1991), Ind.App., 571 N.E.2d 298, 298 n. 1 (because parties to dissolution were at risk of developing AIDS, court granted party's request to employ initials in place of names in opinion to protect their privacy).