While the other articles in this issue will discuss tort issues that arise regularly, this article will discuss the torts you may not have thought about since your bar review class.

Public Disclosure of Private Facts. There is a little-known remedy available for people harmed by the “public disclosure of private facts.” Unlike slander and libel claims, claims for “public disclosure of private facts” are valid even if the information disclosed is the truth. The test is found in Restatement (Second) of Torts Section 652 D, at 383 (1977): “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public.” Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246, (1978).

The comment to the Restatement section illustrates the type of information that is considered a “private fact:””Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man’s life in his home, and some of his past history that he would rather forget. When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest.” Restatement (2nd) of Torts, Section 652 D (1977).

This rule was applied with particular force in Reid v. Pierce County, 136 Wn.2d 195, 961 P.2d 333, (1998). In Reid, medical examiner employees circulated autopsy photos to the general public. the families sued the medical examiner for public disclosure of private facts. the medical examiner’s argument that there is no “common law right of privacy” in Washington was firmly rejected: “So that no further confusion exists, we explicitly hold the common law right of privacy exists in this state and that individuals may bring a cause of action for invasion of that right.”

If your client has been severely and publicly humiliated by such a disclosure, there’s a remedy. If the client’s medical information has been disclosed, a HIPAA remedy is also available.

Negligent Supervision of Children. Particularly since the Tegman v. Accident Investigations case came down, some tort attorneys are reluctant to take cases involving intentional conduct by children. Children over six years old may be at-fault entities. Price v. Kitsap Transit, 125 Wn.2d 556, 559, 886 P.2d 556 (1994). Also, intentional and/or criminal conduct is not covered by insurance policies.

The way around this morass is to prove that a responsible adult is liable for negligent supervision of children. The liability may come from failure to supervise the wrongdoer or the victim, or both. “Under the doctrine of negligent supervision, parents are liable for the intentional torts of their minor children when: (1) the child has a dangerous proclivity; (2) the parents know of the child’s dangerous proclivity; and (3) they fail to exercise reasonable care in controlling that proclivity.” Barrett v. Pacheco 62 Wn.App. 717, 815 P.2d 834, (Div. 1 1991).

The duty to properly supervise children applies to residential programs and schools as well as to custodial parents. For example, in Eldredge v. Kamp Kachess, a residential program was held liable for teenagers who stole a camp truck and got into an accident. Eldredge v. Kamp Kachess Youth Servs., Inc., 90 Wash.2d 402, 408, 583 P.2d 626 (1978).

Also, schools owe a duty to supervise children in their care, so long as the tort was committed within the school’s “scope of authority.” Rhea v. Grandview School Dist. No. JT 116-200, 39 Wash.App. 557, 560, 694 P.2d 666 (1985). This “scope of authority” extends to intentional acts committed by students against others during school hours, and even to acts committed during school-sanctioned extracurricular activities. See McLeod v. Grant Co. School District, 42 Wn.2d 316, 255 P.3d 360 (1953); Peck v. Siau, 65 Wn.App. 285, 827 P.2d 1108 (1992); J.N. v. Bellingham School District, 74 Wn.App. 49, 871 p.2d 1106 (1994).

Timber Trespass. Most tort attorneys don’t realize that they can get punitive damages for injuries to trees or bushes, although they usually can’t get punitive damages for injuries to people. Thanks to our forest products industry, RCW 64.12.030 provides for treble damages for timber trespass. On residential property, the plaintiff is entitled to three times the replacement cost of trees cut down. Sherrell v. Selfors, 73 Wn.App. 596, 871 P.2d 168, (Div. 3 1994). If your client has to buy huge replacement trees, rent a dump truck to transport them and a crane to install them, the defendant’s liability will add up quickly. The defendant is liable even if relying on a survey if that survey proves to be less accurate than the plaintiff’s survey. Sparks v. Douglas County 39 Wn.App. 714, 695 P.2d 588, (Div. 3 1985).

Defendants may argue for reduced damages only where “trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own. However, the burden of proving mitigation is upon the one who caused the injury.

Tatum v. R & R Cable, Inc., 30 Wn.App. 580, 636 P.2d 508, (Div. 3 1981). The defendant has the burden of proving that punitive damages should not be imposed.

Conclusion. People can be liable for telling humiliating but true stories about each other. Adults can be liable for negligent supervision of children who hurt others or are hurt. And defendants will not be liable for punitive damages if they run over a pedestrian in a crosswalk, but they will be if they cut down somebody else’s tree.

Truly, the law is a seamless web.