Ozer v. Borquez

Supreme Court of Colorado, En Banc
940 P.2d 371 (1997)

ELI5:

Rule of Law:

In Colorado, a tort for invasion of privacy exists for unreasonable publicity given to one's private life, which requires showing that private facts were disclosed to the public, the disclosure is highly offensive to a reasonable person, the matter is not of legitimate public concern, and the defendant acted with reckless disregard. Additionally, an appellate court cannot affirm a jury verdict on a legal theory that was not submitted to the jury.

Facts:

In June 1990, Robert Borquez began working as an associate attorney for Robert C. Ozer, P.C. (the Ozer law firm).
On February 19, 1992, Borquez, who is homosexual, learned that his partner had been diagnosed with AIDS and was advised he should be tested for HIV.
Feeling unable to work, Borquez telephoned his supervisor, Robert Ozer, to explain his absence.
During the call, Borquez disclosed to Ozer that he was homosexual, that his partner had AIDS, and that he needed to be tested, after asking Ozer to keep the information confidential, to which Ozer made no reply.
Ozer subsequently told his wife (a firm shareholder), the firm's office manager, and two secretaries about Borquez's personal situation.
Upon returning to the office on February 21, Borquez discovered that everyone in the law firm knew about his private disclosures.
On February 26, 1992, one week after his disclosure, the Ozer law firm terminated Borquez's employment.
The firm stated that Borquez was fired due to the firm's poor financial circumstances.

Procedural Posture:

Robert Borquez sued the Ozer law firm and Robert Ozer in a state trial court for wrongful discharge and invasion of privacy.
Following a trial, a jury returned a verdict in favor of Borquez on both claims, awarding compensatory and exemplary damages.
The Ozer law firm and Ozer (appellants) appealed the trial court's judgment to the Colorado Court of Appeals.
The Court of Appeals affirmed the judgment of the trial court.
The Supreme Court of Colorado granted certiorari to review the decision of the Court of Appeals.

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Issue:

Does Colorado law recognize a tort claim for invasion of privacy based on unreasonable publicity given to one's private life, and if so, was the jury in this case properly instructed on the elements of that claim?

Opinions:

Majority - Chief Justice Vollack

Yes, Colorado law recognizes a tort claim for invasion of privacy based on unreasonable publicity given to one's private life, but no, the jury was not properly instructed. The court formally adopts the tort of invasion of privacy by unreasonable publicity given to private life, establishing a five-part test for the claim. The court's reasoning for adopting the tort is to align Colorado with the majority of jurisdictions that recognize this protection for individual privacy. However, the court found the jury instruction on this claim to be fatally flawed. The trial court incorrectly instructed the jury using the definition of 'publication' from defamation law (communication to any third person), rather than the correct standard of 'publicity' for this privacy tort, which requires communication to the public at large or to a significant number of people. Because of this erroneous instruction, a new trial is required. The court also reversed the court of appeals' decision on the wrongful discharge claim, holding that an appellate court cannot uphold a verdict on a legal theory (the 'lawful activities statute') that was never presented to the jury; the jury was only instructed on a theory based on a Denver ordinance.

Analysis:

This decision is significant for formally establishing the tort of 'unreasonable publicity given to private life' in Colorado, providing a new avenue for plaintiffs to protect their privacy interests. It crucially distinguishes the element of 'publicity' in privacy torts from 'publication' in defamation, clarifying that widespread dissemination is required to invade privacy in this manner. This sets a higher bar for plaintiffs in privacy cases compared to defamation. The decision also reinforces a core procedural principle: appellate courts are limited to reviewing theories of liability actually presented to the jury, preventing them from substituting their own legal justifications to save a verdict.

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