Facts
- Allan D. “Rick” Zinda applied for employment at Louisiana Pacific Corporation (L‑P) in 1983 and completed an employment application and medical history form.
- On the medical form, Zinda answered “No” to questions about back trouble, back injury or disability, fractures or broken bones, and back X‑rays, but noted a past hospitalization for “fall off roof.”
- Before working for L‑P, Zinda had fallen through waferboard on his garage roof (a product manufactured by L‑P) and sustained multiple injuries.
- After about a year at L‑P’s Hayward, Wisconsin plant, Zinda sued L‑P in products liability, alleging negligent manufacture of the waferboard and claiming permanent disability from the earlier fall.
- L‑P compared Zinda’s lawsuit allegations with his medical form, concluded there were inconsistencies, suspended him, and terminated him.
- Following a workplace practice of reporting personnel changes, L‑P published a notice in the plant newsletter stating: “Terminate Al Zinda Falsification of Emp. forms.”
- The newsletter was made available to employees in the plant lunchroom; employees often removed copies from the workplace, and a copy circulated to a local hospital where it was read by co-workers of Zinda’s wife.
- Zinda amended his pleadings to add claims for defamation, invasion of privacy, and wrongful discharge, and sought punitive damages.
Issues
- Whether Zinda established a prima facie claim for invasion of privacy based on publication of the stated reason for discharge.
- Whether the newsletter statement was conditionally privileged as to defamation and invasion of privacy under a common-interest privilege.
- Whether any conditional privilege was abused, and whether abuse could be decided as a matter of law or had to be decided by the jury.
- Whether the damages instructions were erroneous (including treatment of refusal to retract) and whether a new trial on damages was required.
Decision
- The Wisconsin Supreme Court held that Zinda established a prima facie invasion-of-privacy claim based on the workplace publication.
- The Court held the newsletter publication was conditionally (qualifiedly) privileged for both defamation and invasion of privacy due to a common interest between employer and employees in personnel matters.
- The Court held abuse of the conditional privilege was a jury question on the record presented.
- The Court ordered a new trial limited to damages because the jury instructions on damages were improper, including permitting the jury to consider refusal to retract in a manner that could inflate compensatory damages.
- The Court affirmed in part, reversed in part, and remanded for a new trial on damages.
Legal Principles
- Public disclosure of private facts may be actionable where the disclosure is highly offensive to a reasonable person and not of legitimate public concern; dissemination to a broad workplace audience may satisfy the publicity element.
- Employer communications to employees about personnel actions may be protected by a common-interest conditional privilege.
- A conditional privilege is lost if abused, including by knowingly or recklessly publishing false information, publishing beyond the scope of the shared interest, or using unnecessarily defamatory language; whether abuse occurred is generally for the jury when the evidence permits competing inferences.
- Damages instructions must align with the proper category of damages; treating refusal to retract as a basis for increasing compensatory damages can require retrial on damages even when liability stands.
Conclusion
The court sustained potential liability for defamation and invasion of privacy arising from a stigmatizing termination notice, but held the publication was conditionally privileged and that privilege abuse was for the jury; it nonetheless required a new trial on damages because erroneous instructions risked tainting the compensatory award.