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02/02/89 Harold A. Lovgren, v. Citizens First National

February 2, 1989

HAROLD A. LOVGREN, APPELLEE

v.

CITIZENS FIRST NATIONAL BANK OF PRINCETON ET AL., APPELLANTS



SUPREME COURT OF ILLINOIS

534 N.E.2d 987, 126 Ill. 2d 411, 128 Ill. Dec. 542 1989.IL.115

Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Bureau County, the Hon. James J. Wimbiscus, Judge, presiding.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court. JUSTICE CALVO took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

The question presented in this appeal is whether the act of placing an advertisement in a local newspaper, which notified readers about a public auction of farmland and which named the owner of the property as the seller, without the owner's knowledge or consent, gives rise to a cause of action for the invasion of plaintiff's privacy. The trial court held that the owner had failed to state a cause of action upon which relief could be granted and allowed the defendants' motion to dismiss. The appellate court reversed and remanded the case, finding that the plaintiff had pled sufficient facts to sustain a cause of action for intrusion into the seclusion of another. (166 Ill. App. 3d 582.) We granted leave to appeal. Unlike the appellate court, we do not find that the plaintiff has stated a cause of action for intrusion into the seclusion of another. We do find, however, that the facts alleged state a cause of action for that privacy violation referred to as "publicity placing person in false light." Therefore, although we affirm the appellate court and remand the case, we do not adopt the reasoning of the appellate court and vacate that part of the appellate court opinion which finds that plaintiff has alleged a cause of action based on the unreasonable intrusion upon the seclusion of another.

The complaint filed in this case states the following facts. In April 1983, the plaintiff, Harold Lovgren, obtained a second mortgage on his farm from the Citizens First National Bank of Princeton (Bank). When the plaintiff failed to meet his financial obligations to the Bank, certain agents and employees of the Bank urged him to sell the farm. The plaintiff refused and requested additional time to satisfy his financial obligation to the Bank.

In November 1985, advertisements were placed in local newspapers and handbills were circulated stating that the plaintiff was selling his farm at a public auction that would take place on November 25, 1985. No such sale, however, had been scheduled, and the placing of these advertisements was accomplished without the plaintiff's knowledge or consent. The advertisements did not mention the Bank's mortgage on the property, nor did they state that the public sale was being held to satisfy the plaintiff's financial obligations. Further, the act of placing the advertisements and circulating the handbills took place without the Bank's having instituted mortgage foreclosure proceedings on the property.

The plaintiff filed a three-count complaint for invasion of privacy based upon the unreasonable intrusion upon the seclusion of another. Count I was directed against the Bank, count II was directed against the Bank's vice-president, James Miller, and count III was directed against the auctioneer named in the advertisement, William Etheridge. The complaint alleged the facts set forth above. Additionally, the complaint alleged that as a result of the defendants' actions in placing the advertisement, the plaintiff had suffered anguish and suffering and the advertisement had made it practically impossible for the plaintiff to obtain refinancing of his mortgage loan. The complaint prayed for compensatory and punitive damages and for costs. The defendants each filed a motion to dismiss the complaint for failure to state a cause of action, which, as noted, the trial court granted.

We recognize that the facts alleged in the present case may constitute an invasion of privacy. This court recognized the right to privacy in Leopold v. Levin (1970), 45 Ill. 2d 434, where this court stated that "[p]rivacy is one of the sensitive and necessary human values and undeniably there are circumstances under which it should enjoy the protection of law." (45 Ill. 2d at 440-41.) In Leopold, this court referred to the right of privacy as one recognized many years ago and "described in a limited fashion by Judge Cooley with utter simplicity as the right 'to be let alone.'" (45 Ill. 2d at 440.) Although the facts alleged in the present case indicate a possible violation of privacy, we cannot agree with the appellate court that the plaintiff has satisfactorily pled the requisite elements that constitute the tort of intrusion into the seclusion of another.

The Restatement of Torts has adopted Professor William Prosser's four privacy torts. These four branches of privacy are: (1) intrusion upon the seclusion of another (Restatement (Second) of Torts § 652B, at 378 (1977)); (2) appropriation of name or likeness of another (Restatement (Second) of Torts § 652C, at 380 (1977)); (3) publicity given to private life (Restatement (Second) of Torts § 652D, at 383 (1977)); and (4) publicity placing person in false light (Restatement (Second) of Torts 652E, at 394 (1977)). (See also W. Prosser & W. Keeton, Torts § 117, at 849-69 (5th ed. 1984); M. Polelle & B. Ottley, Illinois Tort Law 177-213 (1985).) The Restatement (Second) of Torts describes the tort of intrusion upon seclusion in the following manner:

"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." Restatement (Second) of Torts § 652B, at 378 (1977).

The comments to this section of the Restatement indicate that the nature of this tort depends upon some type of highly offensive prying into the physical boundaries or affairs of another person. The basis of the tort is not publication or publicity. Rather, the core of this tort is the offensive prying into the private domain of another. (Restatement (Second) of Torts § 652B, comments a, b, at 378-79 (1977).) Prosser and Keeton's treatise on torts echoes the Restatement approach. (See W. Prosser & W. Keeton, Torts § 117, at 854-56 (5th ed. 1984).) The examples provided as forming the basis for the tort of intrusion into the seclusion of another include the following acts: invading someone's home; an illegal search of someone's shopping bag in a store; eavesdropping by wiretapping; peering into the windows of a private home; and persistent and unwanted telephone calls. (W. Prosser & W. Keeton, Torts § 117, at 854-55 (5th ed. 1984).) Although we recognize that the contours of the tort of unreasonable intrusion into the seclusion of another are intuitive to a degree, we conclude that the defendants' alleged actions in the present case do not constitute unreasonable intrusion into the seclusion of another. Our decision is based upon the fact that the alleged offensive conduct and subsequent harm resulted from the defendants' act of publication, not from an act of prying analogous to the examples set forth by Prosser and Keeton.

We emphasize that our Discussion of the tort of unreasonable intrusion into the seclusion of another, as enunciated by the Restatement and by Prosser, does not imply a recognition by this court of such a cause of action. We note that there is a conflict among the Illinois appellate court districts as to whether this cause of action should be recognized in this State. (See Melvin v. Burling (3d Dist. 1986), 141 Ill. App. 3d 786 (recognizing cause of action); Kelly v. Franco (1st Dist. 1979), 72 Ill. App. 3d 642 (not recognizing cause of action); Bank of Indiana v. Tremunde (5th Dist. 1977), 50 Ill. App. 3d 480 (implicitly recognizing cause of action); Bureau of Credit Control v. Scott (4th Dist. 1976), 36 Ill. App. 3d 1006 (not recognizing cause of action); see also M. Polelle & B. Ottley, Illinois ...


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