COURT OF APPEALS OF INDIANA
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
PETER CAMPBELL KING ANDREW P. WIRICK
Cline, King & King DEBRA G. RICHARDS
Columbus, Indiana Hume Smith Geddes Green & Simmons
MYRA E. CREEL and CLAUDE CREEL, )
vs. ) No. 41A04-0112-CV-521
I.C.E. & ASSOCIATES, INC., )
APPEAL FROM THE JOHNSON CIRCUIT COURT
The Honorable K. Mark Lloyd, Judge
Cause No. 41C01-0104-CT-128
July 30, 2002
Appellants-plaintiffs Myra E. Creel and Claude Creel (the Creels) appeal the trial courts
grant of summary judgment in favor of appellee-defendant I.C.E. & Associates, Inc. (I.C.E.).
Finding that the undisputed material facts negate the element of intrusion into
the Creels seclusion on their invasion of privacy claim and the element of
outrageous conduct on their intentional infliction of emotional distress claim, we affirm.
The undisputed facts are that Myra and Claude Creel are husband and wife.
Claude is a pastor of Huntsville Evangelistic Community Church in Huntsville,
Indiana. On May 13, 1994, Myra was involved in a motor
vehicle collision and suffered serious injuries including a broken clavicle.
At the time of the accident, Myra was employed by Winona Memorial Hospital
(the hospital) as a quality control specialist in the business department. As
an employee of the hospital, Myra participated in its group long-term disability insurance
plan, which was funded by an insurance policy issued by Fortis Benefits (Fortis).
As a result of the injuries she sustained in the motor
vehicle collision, Myra sought to collect long-term disability benefits under the policy.
Fortis initially made payments to Myra following the accident. Thereafter, Fortis
determined that Myra was no longer eligible for benefits under the policy and
discontinued payments. Myra responded by seeking administrative review of Fortis determination.
As part of its administrative review of Myras appeal, on November 13, 1998,
Fortis commissioned I.C.E., which is a licensed private detective agency, to conduct surveillance
and videotape Myras activities beginning on November 22, 1998. The purpose of
this surveillance was to confirm Myras unemployment and to ascertain whether her activities
were consistent with her medical diagnosis and disability determination. Among other things, Fortis
instructed I.C.E. to videotape Myras activities during services at her husbands church.
J.P. Renner, an I.C.E. investigator, worked on this assignment on
four occasions, November 29, 1998, December 6, 1998, January 24, 1999, and March
7, 1999. On two of these occasions, Renner presented himself as
a worshipper at scheduled church services at the Creels church. Each
time, Renner wore a sling on his arm that concealed a video camera.
When Pastor Claude greeted Renner, Renner indicated that he was in
the area visiting family or friends. The scheduled services were open to
the public, and Renner entered the church via the open main entrance and
was part of a congregation of approximately one hundred and forty people.
No signs were posted indicating that only church members or invitees could
attend or prohibiting videotaping within the church.
During the church service, Renner covertly videotaped Myra as she played piano on
a stage in front of the congregation. He also videotaped Pastor
Claude as he presided over the service. Renner did not inform the
Creels about his videotaping and surveillance activities, nor did he seek the Creels
permission to videotape during church services.
On April 30, 1999, Fortis informed Myra that it had rejected her appeal
regarding its denial of her disability benefits. The Creels subsequently learned
about the videotape when they inquired about the basis for this denial.
Thereafter, on August 30, 1999, the Creels filed a claim for damages against
See footnote In their complaint, the Creels alleged invasion of privacy and intentional
infliction of emotional distressSee footnote by I.C.E. in surreptitiously videotaping Myra and Pastor Claude
during the church worship services. Claude also alleged loss of consortium.
On June 25, 2001, I.C.E. filed a motion for summary judgment, asserting
that there were no genuine issues of material fact concerning its lack of
intent to inflict emotional distress upon the Creels and its lack of a
physical intrusion upon them. The trial court granted I.C.E.s motion for summary
judgment on November 2, 2001. The basis for the trial courts determination
was that the undisputed material facts negated the requisite element of intent in
the Creels claim of intentional infliction of emotional distress and negated the requisite
elements of intent and intrusion into the Creels seclusion in their invasion of
privacy claim. The Creels now appeal.
DISCUSSION AND DECISION
I. Standard of Review
In reviewing a trial courts ruling on summary judgment, this court stands in
the shoes of the trial court, applying the same standards in deciding whether
to affirm or reverse summary judgment. Smith v. Allstate Ins. Co., 681
N.E.2d 220, 223 (Ind. Ct. App. 1997). We do not weigh evidence,
but will liberally construe the facts in the light most favorable to the
nonmoving party. General Motors Corp. v. Northrop Corp., 685 N.E.2d 127, 132
(Ind. Ct. App. 1997), trans. denied. Summary judgment should be granted only
when the designated evidentiary matter shows that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment
as a matter of law. Ind. Trial Rule 56(C). On appeal,
we must determine whether there is a genuine issue of material fact and
whether the law has been correctly applied by the trial court. City
of Elkhart v. Agenda: Open Govt, Inc., 683 N.E.2d 622, 625 (Ind. Ct.
App. 1997), trans. denied. For a defendant to prevail on its motion
for summary judgment, it must show that the undisputed facts negate at least
one element of the plaintiff's cause of action. Dietz v. Finlay
Fine Jewelry Corp., 754 N.E.2d 958, 966 (Ind. Ct. App. 2001). The
party appealing the grant of summary judgment has the burden of persuading this
court on appeal that the trial courts ruling was improper. Schrader v.
Eli Lilly & Co., 639 N.E.2d 258, 261 (Ind. 1994).
II. The Creels Claims
A. Invasion of Privacy
The Creels first contend that the trial court erred in granting I.C.E.s motion
for summary judgment on their invasion of privacy claim because a question of
material fact exists regarding whether their emotional and physical seclusion and solitude was
violated by I.C.E.s covert videotaping of them during the church worship services.
The Creels assert that a Church sanctuary is unlike any other public place
[because it] is a place where people go to seek peace of mind,
solitude and physical seclusion from the worlds problems as they seek an intimate
relationship with the God of their choice. Appellants Br. p. 9.
Accordingly, they argue that they had a reasonable expectation of privacy, solitude,
or seclusion within the bounds of their Church worship service which was invaded
by I.C.E. Appellants Br. p. 7.
The general tort known as invasion of privacy has four strands: (1)
public disclosure of private facts; (2) unreasonable intrusion upon the seclusion of another;
(3) appropriation of anothers name or likeness; and (4) publicity that unreasonably places
another in a false light before the public. Branham v. Celadon
Trucking Servs., Inc., 744 N.E.2d 514, 524 (Ind. Ct. App. 2001), trans. denied.
The Creels claim that I.C.E. invaded their privacy by intruding
into their seclusion.
To establish a claim for invasion of privacy by intrusion, a plaintiff must
demonstrate that there was an intrusion upon the plaintiffs physical solitude or seclusion
as by invading his home or conducting an illegal search.
Medley, 570 N.E.2d 27, 31 (Ind. 1991) (citing W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts, § 117, at 854 (5th
ed. 1984)); see Ledbetter v. Ross, 725 N.E.2d 120, 123 (Ind. Ct. App.
2000) (observing that intrusion upon the plaintiffs physical solitude or seclusion includes invading
his home or other quarters). To rise to the level of tortious
conduct, the intrusion must be something which would be offensive or objectionable to
a reasonable person. Ledbetter, 725 N.E.2d at 123.
Indiana courts have narrowly construed the tort of invasion of privacy
by intrusion. In Cullison, our supreme court stated that the tort
of invasion of privacy by intrusion requires intrusion into the plaintiffs private physical
space. 570 N.E.2d at 31. There have
been no cases in Indiana in which a claim of intrusion was proven
without physical contact or invasion of the plaintiffs physical space such as the
plaintiffs home. See, e.g., Ledbetter, 725 N.E.2d at 123 (holding that a
single telephone call, involving no threats or abusive language, cannot as a matter
of law be the basis for the tort of invasion of privacy by
intrusion); Terrell v. Rowsey, 647 N.E.2d 662, 667 (Ind. Ct. App. 1995) (determining
that there was no actionable intrusion where a defendant opened the plaintiffs car
door while the plaintiff sat in the car, reached behind the drivers seat
and grabbed an empty beer bottle, without making physical contact with the plaintiff)
trans. denied; Cullison, 570 N.E.2d 27, 31 (Ind. 1991) (concluding that, while invasion
of the plaintiffs home could constitute a claim for invasion of privacy, harassment
of the plaintiff in a restaurant or on the public street outside his
home could not).
More recently, in Branham, 744 N.E.2d at 524, this court was confronted with
the question of whether intrusion into a persons emotional solace was sufficient to
establish the tort of invasion of privacy. In that case, employees
of the defendant posed and then took a photograph of a sleeping plaintiff
in a sexually suggestive pose in the employee break room. Id.
We declined to address whether emotional intrusion would suffice after determining that under
either analysisphysical intrusion or emotional intrusionthe plaintiffs claim failed. Id. We rejected
the plaintiffs claim of physical intrusion, because other employees were in the lunchroom
when the plaintiff fell asleep and the employees used the break room to
eat their lunches. Id. We also rejected the plaintiffs claim
of emotional intrusion because he was asleep when the picture was posed and
taken [and t]herefore he could not have suffered any emotional disturbance from it.
Similarly, here, it is undisputed that the Creels were unaware of the videotaping
as it occurred, and, therefore, they could not have suffered any emotional disturbance
from being filmed. See id. Thus, even if intrusion upon
ones emotional privacy would suffice to establish the tort of invasion of privacy
by intrusion, we would not find such intrusion in this instance.
With respect to whether I.C.E. intruded on the Creels physical solitude and seclusion
by videotaping them during the church service, we note that they were neither
alone nor secluded when the videotaping occurred. Renner, the I.C.E. investigator, videotaped
the Creels at scheduled church services that were open to the general public.
Appellants App. p. 73, 133-39. There were no signs posted indicating
that only church members or invitees could attend the services or stating that
services could not be videotaped or could only be videotaped with church permission.
Appellants App. p. 73-74. Using a hidden camera, Renner videotaped
Myra as she played the piano on stage in full view of the
entire congregation of approximately 140 people. Appellants App. p. 129; Appellants App.
p. 264; Appellees App. p. 36. Similarly, he videotaped Pastor Claude as
he presided over the services, led prayer and share time, preached sermons, and
gave benediction to the large gathering of worshipers. Appellants App. p. 132-33.
At no time did Renner have physical contact with Myra or
Pastor Claude. While the Creels object to the covert videotaping, it simply
captured activity that was open to the public, observed by many, and which
Renner or any other of the church attendees could have testified to witnessing
Moreover, it is undisputed that Renner confined his videotaped surveillance to areas of
the church that were open to the public. Specifically, he videotaped as
he entered the church, sat in a pew as part of the congregation,
and exited the building. Appellants App. p. 74. At
no time did he film into any closed area or area not visible
from the church entrance, aisles, or pews where he sat during the service.
Appellants App. p. 74. Under these circumstances, we conclude
as a matter of law that the Creels had no reasonable expectation of
privacy in their activities. Thus, the trial court did not err
in determining that no genuine issue of material fact existed on this issue,
and in granting summary judgment in I.C.E.s favor on the Creels invasion of
B. Intentional Infliction of Emotional Distress
The Creels also contend that the trial court erred in granting I.C.E.s summary
judgment motion on their intentional infliction of emotional distress claim. According to
the Creels, questions of fact exist regarding whether I.C.E.s act of videotaping them
during church worship services constituted outrageous conduct and whether I.C.E. had the requisite
intent to harm. According to the Creels, I.C.E.s conduct was outrageous
because its secret spy videotaping of persons during their worship and prayer was
below the line of decency and outside the collective societal norm of civilized
conduct Appellants Br. p. 12; Appellants Reply Br. p. 11, 12.
The Creels further assert that I.C.E.s evil intent and recklessness can be inferred
from its deception in taking videos without permission, hiding, spying and selling those
videos for personal gain. Appellants Br. p. 14.
Our supreme court first recognized the tort of intentional infliction of emotional distress
in Cullison, 570 N.E.2d at 31. The requirements to prove this tort
are rigorous. Ledbetter, 725 N.E.2d at 124 (quoting Keeton et al., supra
§ 12, at 61). This tort arises when a defendant:
(1) engages in extreme and outrageous conduct that (2) intentionally or recklessly (3)
causes (4) severe emotional distress to another. Bradley v. Hall, 720 N.E.2d
747, 752 (Ind. Ct. App. 1999). The intent to harm emotionally constitutes
the basis of this tort. Ledbetter, 725 N.E.2d at 123-24.
Further, the conduct at issue must exceed all bounds usually tolerated by a
decent society and cause mental distress of a very serious kind. Id.
We have quoted with approval the comment to Section 46 of the Restatement
(Second) of Torts in describing the extreme and outrageous conduct required to sustain
a cause of action for this tort.
d. Extreme and outrageous conduct. The cases thus far decided have
found liability only where the defendants conduct has been extreme and outrageous.
It has not been enough that the defendant has acted with an intent
which is tortious or even criminal, or that he has intended to inflict
emotional distress, or even that his conduct has been characterized by malice, or
a degree of aggravation which would entitle the plaintiff to punitive damages for
another tort. Liability has been found only where the conduct has been
so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Generally, the case is one in which
the recitation of the facts to an average member of the community would
arouse his resentment against the actor, and lead him to exclaim, Outrageous!
See Branham, 744 N.E.2d at 523; Bradley, 720 N.E.2d at 753; Gable v.
Curtis, 673 N.E.2d 805, 809-10 (Ind. Ct. App. 1996). What constitutes
extreme and outrageous conduct depends, in part, upon prevailing cultural norms and values.
Bradley, 720 N.E.2d at 753. In the appropriate case,
the question can be decided as a matter of law. Dietz, 754
N.E.2d at 970 (finding no outrageous conduct where a store security manager accused
an employee of substance abuse, shoplifting, and dishonesty in a gruff and intimidating
manner, where the security managers actions occurred in the context of a detainment
for the purpose of determining the extent of the employees unauthorized conduct); see
also Conwell v. Beatty, 667 N.E.2d 768, 775-77 (Ind. Ct. App. 1996) (finding
no outrageous conduct where a sheriff announced a deputys arrest at a press
conference and refused to assist that deputy in completing retirement forms); Gable v.
Curtis, 673 N.E.2d 805, 809-11 (Ind. Ct. App. 1996) (determining that there was
no outrageous conduct where a contractors wife telephoned a purchaser seven times in
one hour, screaming and threatening to repossess the home and to come over,
and stating repeatedly that the purchasers would pay); cf. Bradley, 720 N.E.2d at
753 (finding that a genuine issue of material fact existed as to whether
the employees supervisor engaged in extreme and outrageous conduct by allegedly shouting at
the employee, criticizing her work in front of other employees, inquiring about the
employees menopause and whether her husband was sexually impotent from diabetes, and misrepresenting
the companys intentions regarding the security of the employees position).
We turn first to the Creels assertion that there is a genuine issue
of material fact regarding whether I.C.E.s act of videotaping of them during church
worship services constituted the requisite extreme and outrageous conduct to sustain this cause
of action. It is undisputed that I.C.E. is a licensed private detective
agency, and that its agent, Renner, videotaped Myra pursuant to a routine investigation
to uncover possible insurance fraud. Appellants App. p. 73; Appellees App. p.
35. In addition, it is undisputed that Renner feigned an arm injury
in order to conceal his video camera, entered the church for a purpose
other than worship and, once inside, secretly taped the Creels at the church
service. Appellants App. p. 74, 161, 162.
However, given the nature of this investigation it was necessary to employ covert,
rather than overt, surveillance procedures.
See footnote Moreover, while I.C.E. obtained the videotape
footage in a devious manner, it is undisputed that videotaping was not prohibited
during church services and that Renner simply filmed Claude and Myra as they
preached and performed, respectively, at an open service in full view of a
large congregation. Appellants App. p. 73-74, 129, 130-39; Appellants App. p. 264.
Accordingly, while I.C.E.s conduct may be considered distasteful, we nevertheless conclude as
a matter of law that it did not rise to the level of
outrage necessary to support a claim for intentional infliction of emotional distress.See footnote
Inasmuch as I.C.E. has negated the outrageous conduct element of this tort,
we need not reach the issue of I.C.E.s intent to cause harm to
See Dietz, 754 N.E.2d at 966. Thus, we conclude that
the trial court did not err in granting I.C.E.s motion for summary judgment
on the Creels claim for intentional infliction of emotional distress.
SULLIVAN, J., and DARDEN, J., concur.
Footnote: The Creels also filed a complaint against Fortis for allegedly
improperly denying Myra disability benefits under the hospitals policy. The Creels subsequently settled
their claims against Fortis. Appellees App. p. 101.
Footnote: The Creels also claimed a separate cause of
action for the tort of outrage. However, as the trial court observed,
the terms outrage and intentional infliction of emotional distress both define the same
tort in Indiana.
See Doe v. Methodist Hosp., 690 N.E.2d 681, 691
(Ind. 1997) (observing that Indiana law . . . provides protection for emotional
injuries with a civil action for intentional infliction of emotional distress, also known
We note that while the Creels place great emphasis on
the fact that I.C.E. was reimbursed by Fortis for the videotape footage, they
do not make any claim of invasion of privacy by appropriation.
This tort exists where the defendant appropriates the plaintiffs name or likeness for
the defendants benefit or advantage.
Felsher v. University of Evansville, 755 N.E.2d
589, 601 (Ind. 2001).
The Creels assert that there was no necessity for this
investigation because I.C.E. could have relied upon her prior admission that she played
piano during church services. Appellants Reply Br. p. 9. To
support this assertion, the Creels cite to a portion of the record containing
a form that details information about Myra. Appellants App. p. 262.
The precise nature and purpose of this form is unclear; however, it originated
from I.C.E. as part of its response to the Creels request for production
of documents, and appears to contain information pertaining to its investigation of Myra.
Appellants App. p. 262. The form contains Myras personal information (such
as her name, address, and physical description) and describes the nature of her
injury. Appellants App. p. 262. It also contains the statement: SUSPICIONS:
Possible [sic] involved in church activities. Appellants App. p. 262.
While this statement indicates that Fortis suspected that Myra was engaging in activities
that were inconsistent with her medical diagnosis and disability determination, it does not
indicate that Myra actually admitted to such activities. As such, there is
no designated evidence establishing that Myra informed Fortis that she played piano at
church or that Fortis conveyed this information to I.C.E.
Footnote: Because we have concluded as a matter of law based
on the undisputed facts that I.C.E.s acts did not constitute the requisite outrageous
conduct, we need not address the Creels claim that the trial court erred
in granting I.C.E.s motion to strike portions of the designated affidavits of various
church members which characterized I.C.E.s acts as outrageous or not those of a
Footnote: Claudes loss of consortium claim is a derivative action and
dependent on proof of the Creels underlying claims against I.C.E.
ex. rel. Estate of Wade v. U-Haul Intl, 745 N.E.2d 755, 764-65 (Ind.
2001). Inasmuch as we have determined that I.C.E. is entitled to summary
judgment on the invasion of privacy and intentional infliction of emotional distress claims,
we conclude that the trial court properly found that I.C.E. was also entitled
to summary judgment on Claudes loss of consortium claims.