{ "id": 4342711, "name": "JACK TILLET, LYDIA TILLET, and ANDREA McCONNELL, Plaintiffs v. ONSLOW MEMORIAL HOSPITAL, INC., Defendant", "name_abbreviation": "Tillet v. Onslow Memorial Hospital, Inc.", "decision_date": "2011-09-06", "docket_number": "No. COA11-116", "first_page": "382", "last_page": "386", "citations": [ { "type": "official", "cite": "215 N.C. App. 382" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "355 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "823" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 610", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170230 ], "year": 1987, "pin_cites": [ { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0610-01" ] }, { "cite": "472 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "354" }, { "page": "480" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 20", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11911523 ], "year": 1996, "pin_cites": [ { "page": "26-27" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0020-01" ] }, { "cite": "574 S.E.2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "90", "parenthetical": "quoting Miller v. Brooks, 123 N.C. App. 20, 26-27, 472 S.E.2d 350, 354 (1996)" }, { "page": "90" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250748 ], "year": 2002, "pin_cites": [ { "page": "479", "parenthetical": "quoting Miller v. Brooks, 123 N.C. App. 20, 26-27, 472 S.E.2d 350, 354 (1996)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0462-01" ] }, { "cite": "312 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "411" } ], "opinion_index": 0 }, { "cite": "310 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2400761 ], "year": 1984, "pin_cites": [ { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0312-01" ] }, { "cite": "517 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "124", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0 }, { "cite": "350 N.C. 601", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132031 ], "year": 1999, "pin_cites": [ { "page": "604-05", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0601-01" ] } ], "analysis": { "cardinality": 513, "char_count": 10239, "ocr_confidence": 0.738, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14734121564616315 }, "sha256": "d159911b8beae35c3a3d33d9f2a583df04c2582365600e38884884b1f1a9adf3", "simhash": "1:cd3db96817baa075", "word_count": 1567 }, "last_updated": "2023-07-14T18:49:09.394868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and McCULLOUGH concur." ], "parties": [ "JACK TILLET, LYDIA TILLET, and ANDREA McCONNELL, Plaintiffs v. ONSLOW MEMORIAL HOSPITAL, INC., Defendant" ], "opinions": [ { "text": "CALABRIA, Judge.\nJack Tillet, Lydia Tillet, and Andrea McConnell (collectively \u201cplaintiffs\u201d) appeal the trial court\u2019s order dismissing their claim for tortious invasion of privacy against Onslow Memorial Hospital, Inc. (\u201cdefendant\u201d). We affirm.\nI. Background\nAccording to the allegations in plaintiffs\u2019 complaint, plaintiffs are the immediate family members of Cynthia Louise Tillet-Knighten (\u201cMs. Tillet-Knighten\u201d). Ms. Tillet-Knighten died on 17 April 2009 as the result of a homicide.\nSince Ms. Tillet-Knighten\u2019s cause of death was homicide, an autopsy was performed on her body by Coastal Pathology Associates, P.A. During the autopsy, x-ray photographs were taken which depicted massive blunt force trauma to Ms. Tillet-Knighten\u2019s face and skull. After the autopsy was completed, several of defendant\u2019s employees accessed and viewed Ms. Tillet-Knighten\u2019s x-ray photographs and additionally published and disclosed them to third parties.\nOn 12 July 2010, plaintiffs initiated an action against defendant in Onslow County Superior Court. Plaintiffs\u2019 complaint alleged that the actions of defendant\u2019s employees constituted a common law tortious invasion of plaintiffs\u2019 privacy. On 26 July 2010, defendant filed an answer and motion to dismiss plaintiffs\u2019 complaint pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. After a hearing, the trial court granted defendant\u2019s motion on 21 September 2010. Plaintiffs appeal.\nII. Invasion of Privacy\nPlaintiffs\u2019 sole argument on appeal is that the trial court erred by granting defendant\u2019s motion to dismiss their claim for tortious invasion of privacy. We disagree.\nA motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint by presenting the question whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief can be granted under some [recognized] legal theory. A motion to dismiss pursuant to Rule 12(b)(6) should not be granted unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.\nIsenhour v. Hutto, 350 N.C. 601, 604-05, 517 S.E.2d 121, 124 (1999) (internal quotations and citations omitted).\nPlaintiffs contend that their complaint alleged a valid cause of action for common law tortious invasion of privacy. Our Supreme Court has stated that four basic types of invasion of privacy torts exist: \u201c(1) appropriation, for the defendant\u2019s advantage, of the plaintiff's name or likeness; (2) intrusion upon the plaintiff\u2019s seclusion or solitude or into his private affairs; (3) public disclosure of embarrassing private facts about the plaintiff; and (4) publicity which places the plaintiff in a false light in the public eye.\u201d Renwick v. News and Observer and Renwick v. Greensboro News, 310 N.C. 312, 322, 312 S.E.2d 405, 411 (1984). Plaintiffs\u2019 claim is brought pursuant to the second type of privacy tort, intrusion upon the plaintiffs\u2019 seclusion or solitude or into their private affairs (\u201cintrusion upon seclusion\u201d).\n\u201cThe tort of invasion of privacy by intrusion into seclusion has been recognized in North Carolina and is defined as the intentional intrusion [\u2018]physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns . . . [where] the intrusion would be highly offensive to a reasonable person. [\u2019]\u201d Toomer v. Garrett, 155 N.C. App. 462, 479, 574 S.E.2d 76, 90 (2002) (quoting Miller v. Brooks, 123 N.C. App. 20, 26-27, 472 S.E.2d 350, 354 (1996)). Examples of recognized intrusions upon seclusion include \u201c \u2018physically invading a person\u2019s home or other private place, eavesdropping by wiretapping or microphones, peering through windows, persistent telephoning, unauthorized prying into a bank account, and opening personal mail of another.\u2019 \u201d Id. at 480, 574 S.E.2d at 90 (quoting Hall v. Post, 85 N.C. App. 610, 615, 355 S.E.2d 819, 823 (1987)).\nIn the instant case, plaintiffs contend that they possess a personal privacy interest in the autopsy x-ray photographs of Ms. Tillet-Knighten that was intruded upon by the actions of defendant\u2019s employees. However, the statute which regulates access to autopsy photographs makes clear that family members cannot possess a privacy interest in these photographs for the purposes of the intrusion upon seclusion tort.\nN.C. Gen. Stat. \u00a7 130A-389.1 governs the inspection and examination of autopsy photographs. This statute states, in relevant part: \u201cExcept as otherwise provided by law, any person may inspect and examine original photographs or video or audio recordings of an autopsy performed pursuant to G.S. 130A-389(a) at reasonable times and under reasonable supervision of the custodian of the photographs or recordings.\u201d N.C. Gen. Stat. \u00a7 130A-389.1(a) (2009) (emphasis added). Moreover, \u201c[i]f the investigating medical examiner has retained the original photographs or recordings, then the investigating medical examiner is the custodian of the photographs or video or audio recordings and must allow the public to inspect and examine them in accordance with this subsection.\u201dId. (emphasis added).\nHowever, \u201cno custodian of the original recorded images shall furnish copies of photographs or video or audio recordings of an autopsy to the public.\u201d Id. Thus, original autopsy photographs may be inspected and examined by any member of the public under the supervision of the photographs\u2019 custodian. But members of the public do not possess a general right to obtain a copy of these original autopsy photographs, and may obtain such copies only if they fall within specific exceptions which comprise the rest of the statute. The remainder of N.C. Gen. Stat. \u00a7 130A-389.1 repeatedly references the term \u201ccopies\u201d and regulates how and by whom they may be obtained and disseminated. See, e.g., N.C. Gen. Stat. \u00a7 130A-389.1(b) (\u201cThe following public officials may obtain copies of autopsy photographs----\u201d); N.C. Gen. Stat. \u00a7 130A-389.1(c) (\u201cThe following persons may obtain copies of autopsy photographs . . . .\u201d); and N.C. Gen. Stat. \u00a7 130A-389.1(d) (\u201cA person who is denied access to copies of photographs . . . .\u201d). The statute does not contain similar detailed regulations regarding the general right of access to the original photographs referenced in N.C. Gen. Stat. \u00a7 130A-389.1(a); in fact, it does not reference originals at all after this initial subsection.\nWhen discussing the invasion of privacy tort of intrusion upon seclusion, the Restatement (Second) of Torts explains:\nThe 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.\nRestatement- (Second) of Torts \u00a7 652B, cmt. c. (emphasis added). Thus, a plaintiff cannot successfully pursue an intrusion upon seclusion claim based upon the accessing of items which are either in the public record or required to be made available for public inspection.\nIn the instant case, plaintiffs allege that defendant\u2019s employees intruded upon their seclusion by \u201cunlawfully accessing, viewing, disclosing, [and] publishing the decedent\u2019s x-ray film autopsy photographs.\u201d However, since the originals of these photographs may be inspected and examined by any member of the public, subject only to the restriction that they be viewed at reasonable times and under reasonable supervision, autopsy photographs cannot be considered private for the purposes of this tort. See id.\nThe allegations in plaintiffs\u2019 complaint allege that defendant\u2019s employees unlawfully exceeded the statutory authorization in N.C. Gen. Stat. \u00a7 130A-389.1(a) when they viewed the autopsy photographs and published them to third parties. Nonetheless, such violations of the statute are only relevant to the employees\u2019 potential criminal liability. See N.C. Gen. Stat. \u00a7 130A-389.1(g)-(h) (2009). As plaintiffs concede in their brief, a violation of N.C. Gen. Stat. \u00a7 130A-389.1 does not give rise to a civil cause of action. Ultimately, in light of N.C. Gen. Stat. \u00a7 130A-389.1(a), the alleged actions of defendant\u2019s employees did not invade plaintiffs\u2019 privacy by intruding upon their solitude, seclusion, private affairs or concerns. Therefore, plaintiffs\u2019 complaint failed to state a claim for invasion of privacy. This argument is overruled.\nIII. Conclusion\nThe viewing of autopsy photographs cannot be considered an intrusion upon the plaintiffs\u2019 seclusion in that, by statute, the photographs are readily accessible by \u201cany person\u201d subject only to a restriction that the viewing occur at reasonable times and under reasonable supervision. N.C. Gen. Stat. \u00a7 130A-389.1(a). Thus, the actions of defendant\u2019s employees in viewing and distributing Ms. Tillet-Knighten\u2019s autopsy photographs cannot be considered a tortious intrusion into the seclusion of plaintiffs. The trial court correctly granted defendant\u2019s motion to dismiss plaintiffs\u2019 claim.\nAffirmed.\nJudges ELMORE and McCULLOUGH concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Economos Law Firm, PLLC, by Larry C. Economos, for plaintiff-appellants.", "Cranfill Sumner & Harlzog, LLP, by John D. Martin and Carolyn C. Pratt, for defendant-appellee." ], "corrections": "", "head_matter": "JACK TILLET, LYDIA TILLET, and ANDREA McCONNELL, Plaintiffs v. ONSLOW MEMORIAL HOSPITAL, INC., Defendant\nNo. COA11-116\n(Filed 6 September 2011)\nPrivacy \u2014 invasion of \u2014 autopsy photographs\nThe trial court correctly dismissed a claim for invasion of privacy under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) where the claim was based on the viewing of autopsy x-rays by defendant\u2019s employees and the disclosure of those photographs to third parties. By statute, autopsy photographs are accessible by any person, subject only to restrictions on time and supervision, and publishing the x-rays to third parties was relevant only to the employees\u2019 potential criminal liability.\nAppeal by plaintiff from order entered 21 September 2010 by Judge Benjamin G. Alford in Onslow County Superior Court. Heard in the Court of Appeals 18 August 2011.\nEconomos Law Firm, PLLC, by Larry C. Economos, for plaintiff-appellants.\nCranfill Sumner & Harlzog, LLP, by John D. Martin and Carolyn C. Pratt, for defendant-appellee." }, "file_name": "0382-01", "first_page_order": 392, "last_page_order": 396 }