Judge v. Saltz Plastic Surgery, P.C. ( 2016 )

This opinion is subject to revision before
publication in the Pacific Reporter
2016 UT 7
IN THE
SUPREME COURT OF THE STATE OF UTAH
CONILYN JUDGE,
Respondent,
v.
SALTZ PLASTIC SURGERY, P.C. and RENATO SALTZ, M.D.,
Petitioners.
No. 20140654
February 4, 2016
Third District, Salt Lake
The Honorable L. A. Dever
No. 090900609
On Certiorari to the Utah Court of Appeals
Attorneys:
Roger H. Hoole, Gregory N. Hoole, Salt Lake City, for respondent
Robert G. Wright, Mark L. McCarty, Brandon B. Hobbs,
Zachary E. Peterson, Salt Lake City, for petitioners
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT and ASSOCIATE CHIEF JUSTICE LEE joined.
JUSTICE DURHAM filed an opinion concurring in the result.
JUSTICE JOHN A. PEARCE became a member of the Court
on December 17, 2015, after oral argument in this matter,
and accordingly did not participate.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶ 1 After partially redacted versions of her nude pre- and
post-operative photographs were aired on the evening news,
Conilyn Judge filed a lawsuit against Saltz Plastic Surgery, P.C.,
Cite as: 2016 UT 7
Opinion of the Court
and Renato Saltz , M.D., (collectively, Saltz) and against Fox
News. The claims against Fox News were dismissed pursuant to a
settlement agreement. Ms. Judge alleged five causes of action
against Saltz: “(1) public[ation] of private facts, (2) false light,
(3) intrusion upon seclusion, (4) breach of fiduciary duty, and
(5) negligent employment and supervision.” Saltz moved for and
was granted summary judgment on all five claims. The Utah
Court of Appeals subsequently reversed the grant of summary
judgment for each of the five causes of action. We granted review
as to the following two issues regarding the claim for publication
of private facts: (1) whether we should adopt the requirement in
section 652D(b) of the Restatement (Second) of Torts that plaintiffs
must show that “the matter publicized . . . is not of legitimate
concern to the public” and (2) whether the court of appeals erred
in concluding, based on that provision, that disputed issues of fact
precluded summary judgment on this claim. We also granted
review as to whether the court of appeals erred in holding that
disputed issues of material fact concerning the scope and meaning
of a consent form signed by Ms. Judge precluded summary
judgment on the claim for intrusion on seclusion.
¶ 2 For reasons explained below, we adopt the
Restatement’s legitimate public concern element for claims for
publication of private facts, and we affirm the court of appeals’
reversal of the grant of summary judgment on the claims for
publication of private facts and intrusion on seclusion.
BACKGROUND
¶ 3 In October 2006, Dr. Saltz performed an abdominoplasty
and a breast augmentation on Ms. Judge. 1 Prior to surgery,
Ms. Judge signed two consent forms entitled “Consent for
Surgery/Procedure or Treatment.” One form included the
1 Because this case reached the court of appeals “[o]n appeal
from a district court’s summary judgment ruling, [the court of
appeals] view[ed] the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.”
Judge v. Saltz Plastic Surgery, PC, 2014 UT App 144, ¶ 13, 330 P.3d
126 (internal quotation marks omitted). We likewise view the facts
in the light most favorable to the nonmoving party. See infra ¶ 11.
2
JUDGE v. SALTZ
Opinion of the Court
following language (the other used “functionally identical”
language): “I consent to be photographed or televised before,
during, and after the operation(s) or procedure(s) to be
performed, including appropriate portions of my body, for
medical, scientific or educational purposes, provided my identity
is not revealed by the pictures.” Judge v. Saltz Plastic Surgery, PC,
2014 UT App 144, ¶ 2 & n.1, 330 P.3d 126.
¶ 4 In 2007, Fox News decided to produce a two-part news
story about “the risks and benefits of plastic surgery, and how to
select a reputable and qualified plastic surgeon.” For this story, a
Fox News reporter interviewed a woman who experienced
serious medical complications following plastic surgery. In order
to counterbalance the negative example, the reporter contacted
Saltz’s office to ask “whether Dr. Saltz had a patient with a
positive surgical outcome who would be willing to be interviewed
for the news story” about plastic surgery and how to choose a
plastic surgeon. Saltz invited Ms. Judge to be interviewed for the
story. Because of her interest in women’s health issues and her
desire to help “women make a more informed decision about how
to choose a plastic surgeon and . . . be aware of why [they] might
want to have plastic surgery and that it’s okay,” Ms. Judge agreed
to participate in the news story. Ms. Judge “felt that [it] would be
an educational piece for the public.”
¶ 5 Ms. Judge was interviewed by the Fox News reporter on
January 11, 2008, at Saltz’s office. During the interview, Ms. Judge
openly discussed her plastic surgery, stating that she was “really
pleased” and describing the results. The interview included
Dr. Saltz conducting a m ock medical examination of Ms. Judge,
which was filmed for use as background footage. Ms. Judge wore
a paper examination gown for the duration of the mock
examination. She expressed concern “about the camera angles that
might be used and wanted to ensure that the filming was
appropriate and tasteful, showing no cleavage or thigh.” After the
mock examination, Ms. Judge posed for post-operative
photographs showing the results of her surgery.2
2The facts indicate only that the photographs were taken on
the same day as the interview, after the mock examination.
Whether the post-operative photographs were understood to be
(cont.)
3
Cite as: 2016 UT 7
Opinion of the Court
¶ 6 While Ms. Judge was changing back into her street
clothes after the mock examination, the reporter asked Saltz’s
office manager for “before and after” pictures of Ms. Judge and
other patients. According to Saltz, once Ms. Judge came out of the
examination room, Saltz’s office manager asked Ms. Judge, in the
presence of the reporter and Dr. Saltz, for consent to release the
clinical photographs for the news story, and Ms. Judge gave
consent for the release. However, the reporter denied this account
even though her denial subjected her employer, Fox News, to
liability. And Ms. Judge avers that she did not consent to the
release of the photographs to the news media. Later that day,
Saltz’s office manager emailed Ms. Judge’s unredacted nude pre-
and post-operative photographs to the reporter, identifying them
by writing, in one email, “Here are Coni’s before pictures” and, in
another email, “[H]ere are Coni’s after pictures.” 3 Saltz “placed no
restrictions on Fox News’ use of [Ms. Judge’s] clinical
photographs in the email with which they were sent or
otherwise.”
¶ 7 Fox News selected two of Ms. Judge’s photographs for
use in the news story and redacted them by placing black bars
across Ms. Judge’s bust and pelvis. Judge, 2014 UT App 144, ¶ 6.
The “photographs were taken from the neck down and did not
show [Ms. Judge’s] face,” but showed her body “from neck to
upper thigh.” Id. ¶ 5. Fox News then used the redacted
photographs in the January 31, 2008 news story about plastic
surgery, identifying them by stating, “[T]his is Coni before; this is
Coni after.” Id. ¶ 6.
¶ 8 Once Ms. Judge discovered that her clinical photographs
had been used in the story, she contacted Fox News and Saltz to
ask what was going on, and the Fox News reporter told Ms. Judge
that she got the photographs from Saltz. The broadcast, which
was titled “Nip, Tuck and Nightmare,” had already been aired on
for the interview or whether they were an additional set of post-
operative photographs taken as part of Ms. Judge’s medical
treatment is not indicated by the available facts.
3 The facts do not indicate whether the post-operative
photographs provided to the Fox News reporter were those taken
on the day of the interview.
4
JUDGE v. SALTZ
Opinion of the Court
the evening news and had also been posted on the Fox News
website. Ms. Judge demanded that the photographs be taken off
the website immediately. Fox News removed the photographs, re-
edited the story, and kept the re-edited version of the story (which
did not include Ms. Judge’s photographs) on the website.
¶ 9 On January 12, 2009, Ms. Judge filed a lawsuit against
Fox News and Saltz. The claims against Fox News were dismissed
pursuant to a settlement agreement. Ms. Judge alleged five causes
of action against Saltz: “(1) public[ation] of private facts, (2) false
light, (3) intrusion upon seclusion, (4) breach of fiduciary duty,
and (5) negligent employment and supervision.” Saltz moved for
and was granted summary judgment on all five claims. The court
of appeals subsequently reversed the grant of summary judgment
for each of the five causes of action. Saltz filed a petition for writ
of certiorari on July 23, 2014, and we granted review as to the
following issues regarding the claims for publication of private
facts and intrusion on seclusion:
1. Whether this Court should adopt the Restatement
(Second) of Torts § 652D(b), which requires that
“the matter publicized . . . not [be] of legitimate
concern to the public,” and whether the court of
appeals erred in defining and applying that
provision to conclude that disputed issues of fact
precluded summary judgment on Respondent’s
claim of publication of private facts.
2. Whether the court of appeals erred in reversing
summary judgment dismissing a claim for
intrusion on seclusion by holding there were
disputed issues of material fact concerning the
scope and meaning of a consent form signed by
Respondent.
¶ 10 We adopt the Restatement’s legitimate public concern
element for claims for publication of private facts and affirm the
court of appeals’ reversal of the grant of summary judgment for
publication of private facts and intrusion on seclusion.
STANDARD OF REVIEW
¶ 11 “On a writ of certiorari, we review the decision of the
court of appeals, not that of the district court, and apply the same
standard[s] of review used by the court of appeals. We conduct
5
Cite as: 2016 UT 7
Opinion of the Court
that review for correctness, ceding no deference to the court of
appeals.” Watkins v. Ford, 2013 UT 31, ¶ 18, 304 P.3d 841
(alteration in original) (internal quotation marks omitted). Because
this case is on appeal from a summary judgment ruling, the court
of appeals “view[ed] the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party and
review[ed] the court’s legal conclusions and ultimate grant or
denial of summary judgment for correctness.” Judge v. Saltz Plastic
Surgery, PC, 2014 UT App 144, ¶ 13, 330 P.3d 126 (internal
quotation marks omitted). Thus, we review the decision of the
court of appeals for correctness.
ANALYSIS
¶ 12 Saltz contends that the court of appeals correctly
“concluded that a plaintiff alleging . . . public disclosure of private
facts must demonstrate that the public has no legitimate interest
in the private fact,” but argues that the court of appeals erred in
defining and applying that provision to conclude that disputed
issues of fact precluded summary judgment on the claim for
publication of private facts. Saltz also contends that the court of
appeals erred in reversing summary judgment dismissing the
claim for intrusion on seclusion by holding that there were
disputed issues of material fact concerning the scope and meaning
of the consent forms signed by Ms. Judge.
¶ 13 We first consider and adopt the requirement in section
652D(b) of the Restatement (Second) of Torts that for claims for
publication of private facts, it must be shown that “the matter
publicized . . . is not of legitimate concern to the public.” Next, we
determine that the court of appeals correctly defined and applied
that provision to conclude that disputed issues of fact precluded
summary judgment on the claim for publication of private facts.
Finally, we determine that the court of appeals correctly reversed
summary judgment on the claim for intrusion on seclusion based
on disputed issues of material fact concerning the scope and
meaning of the consent forms.
6
JUDGE v. SALTZ
Opinion of the Court
I. FOR CLAIMS FOR PUBLICATION OF PRIVATE FACTS,
PLAINTIFFS MUST SHOW THAT “THE MATTER
PUBLICIZED . . . IS NOT OF LEGITIMATE
CONCERN TO THE PUBLIC”
¶ 14 This is the first case in which we address the issue of
whether to adopt the requirement in section 652D(b) of the
Restatement (Second) of Torts that “the matter publicized . . . is
not of legitimate concern to the public” as a fourth element for
claims for publication of private facts. We set forth three elements
for such claims in Shattuck-Owen v. Snowbird Corp.:
(1) the disclosure of the private facts must be a
public disclosure and not a private one; (2) the facts
disclosed to the public must be private facts, and
not public ones; [and] (3) the matter made public
must be one that would be highly offensive and
objectionable to a reasonable person of ordinary
sensibilities.
2000 UT 94, ¶ 11, 16 P.3d 555 (citation omitted). In Shattuck-Owen,
we also noted that “the Restatement (Second) of Torts § 652D
(1977) contains another element, requiring that the matter made
public not be of legitimate concern to the public” but, in light of
our holding in that case, declined to decide whether to adopt that
element. Id. ¶ 11 n.1 (internal quotation marks omitted). Today,
we adopt this element as a fourth element for claims for
publication of private facts. 4
¶ 15 In adopting this fourth element, we consider it
appropriate to provide some guidance regarding its application.
We do not, however, fully develop the contours of the element
because this is the first case before us and we anticipate that the
4
Absent this fourth element, the test for claims for publication
of private facts would be too broad, posing a risk to the freedom
of speech and freedom of the press guaranteed by the First
Amendment. The requirement that the matter made public not be
of legitimate concern to the public imposes a reasonable constraint
on claims for publication of private facts that is appropriate in
light of the constitutional restrictions on the common law right of
privacy.
7
Cite as: 2016 UT 7
Opinion of the Court
contours will be developed over time in our case law. The
Restatement’s comment regarding “legitimate public concern”
notes that “[t]he common law has long recognized that the public
has a proper interest in learning about many matters.”
RESTATEMENT (SECOND) OF TORTS § 652D cmt. d (1977). In order to
determine whether a matter is of legitimate public concern, courts
evaluate its newsworthiness, taking into consideration the
customs and conventions of the community. Id. at cmt. h. This
inquiry may present a jury question, but the determination may
also sometimes be made as a matter of law.
¶ 16 Legitimate public interest has been defined as
“newsworthiness.” Shulman v. Grp. W Prods., Inc., 955 P.2d 469,
478 (Cal. 1998). “News,” for purposes of this inquiry, is a concept
that has essentially been defined by traditional publishers and
broadcasters, “in accordance with the mores of the community,”
and includes publications about such topics as
homicide and other crimes, arrests, police raids,
suicides, marriages and divorces, accidents, fires,
catastrophes of nature, a death from the use of
narcotics, a rare disease, the birth of a child to a
twelve-year-old girl, the reappearance of one
supposed to have been murdered years ago, a
report to the police concerning the escape of a wild
animal and many other similar matters of genuine,
even if more or less deplorable, popular appeal.
RESTATEMENT (SECOND) OF TORTS § 652D cmt. g (1977). The scope
of matters of legitimate public concern is not, however, “limited
to ‘news,’ in the sense of reports of current events or activities.”
Id. at cmt. j. Aside from such reports, newsworthiness also
extends to “the use of names, likenesses or facts in giving
information to the public for purposes of education, amusement
or enlightenment, when the public may reasonably be expected to
have a legitimate interest in what is published.” Id.
¶ 17 But “[t]he extent of the authority to make public private
facts is not . . . unlimited” either. Id. at cmt. h. In determining
whether there is legitimate public concern, one must take into
account whether there is a logical nexus between the information
and a matter of legitimate public interest, the degree of
intrusiveness, and the community’s customs and conventions. In
Shulman, for example, the Supreme Court of California found that
8
JUDGE v. SALTZ
Opinion of the Court
the information included in a broadcast was of legitimate public
concern “where the facts disclosed about a private person
involuntarily caught up in events of public interest bear a logical
relationship to the newsworthy subject of the broadcast and are
not intrusive in great disproportion to their relevance.” Shulman,
955 P.2d at 478; see also Campbell v. Seabury Press, 614 F.2d 395, 397
(5th Cir. 1980) (“The privacy of [individuals who either have not
sought or have attempted to avoid publicity] is protected,
however, by requiring that a logical nexus exist between the
complaining individual and the matter of legitimate public
interest.”); Winstead v. Sweeney, 517 N.W.2d 874, 877 (Mich. Ct.
App. 1994) (“In Campbell, . . . there was a logical nexus between
the facts published about the plaintiff and the matter of public
interest.”). 5 Furthermore, “account must be taken of the customs
and conventions of the community,” which also requires
consideration of community mores. RESTATEMENT (SECOND) OF
TORTS § 652D cmt. h (1977). Information is not considered to be of
legitimate public concern “when the publicity ceases to be the
giving of information to which the public is entitled, and becomes
a morbid and sensational prying into private lives for its own
sake, with which a reasonable member of the public, with decent
5 A logical nexus between information published and the
matter of legitimate public interest is required not only in cases
involving involuntary public figures but also in cases involving
voluntary public figures. Voluntary public figures are those who
have voluntarily placed themselves in the public eye.
RESTATEMENT (SECOND) OF TORTS § 652D cmt. e (1977). While the
legitimate public interest may extend further in cases involving
voluntary public figures, it is not unlimited. See id. at cmt. h
(“Some reasonable proportion is also to be maintained between
the event or activity that makes the individual a public figure and
the private facts to which publicity is given. Revelations that may
properly be made concerning a murderer or the President of the
United States would not be privileged if they were to be made
concerning one who is merely injured in an automobile
accident.”). In determining the limits of legitimate public interest,
“account must be taken of the customs and conventions of the
community.” Id. Ultimately, such customs and conventions, and
“community mores,” determine what is newsworthy. Id.
9
Cite as: 2016 UT 7
Opinion of the Court
standards, would say that he had no concern.” Id.; see also Robert
C. Ozer, P.C. v. Borquez, 940 P.2d 371, 378 (Colo. 1997); Green v.
Chicago Tribune Co., 675 N.E.2d 249, 256 (Ill. App. Ct. 1996);
Winstead, 517 N.W.2d at 877.
¶ 18 In certain cases, it is appropriate for courts to decide as a
matter of law whether a given matter is of legitimate concern to
the public. “If the court can determine, as a matter of law, whether
the facts are within the realm of the public interest,” the court may
decide the issue on summary judgment. Winstead, 517 N.W.2d at
878. Summary judgment is appropriate in clear cases, where
reasonable minds could not differ, such as Toffoloni v. LFP
Publishing Group, LLC, where Ms. Benoit, a model and
“professional woman wrestler,” was murdered by her husband, a
well-known professional wrestler. 572 F.3d 1201, 1204 (11th Cir.
2009). In that case, there was “no dispute that Ms. Benoit’s death
was a legitimate matter of public interest and concern.” Id. at 1205
(internal quotation marks omitted). However, when an article
about Ms. Benoit’s life, career, and death published in a 2008 issue
of Hustler magazine gratuitously included nude photographs of
Ms. Benoit taken twenty years earlier, the court correctly held that
there was no legitimate public interest in the published nude
photographs because they “were in no conceivable way related to
the ‘incident of public concern’ or current ‘drama’ [of Ms.]
Benoit’s death.” Id. at 1204, 1208, 1211. Reasonable minds could
not differ in that case; therefore, summary judgment was
appropriate.
¶ 19 In cases where reasonable minds could differ about
whether a matter is of legitimate public concern, however,
summary judgment is not an option. If the court, “after consulting
the relevant sections of the Restatement and reviewing the case
law, . . . concludes that reasonable minds could differ concerning
the newsworthiness of the information,” then the issue is a jury
question. Winstead, 517 N.W.2d at 878–79.
II. DISPUTED ISSUES OF MATERIAL FACT PRECLUDED
SUMMARY JUDGMENT FOR PUBLICATION
OF PRIVATE FACTS
¶ 20 In this case, the court of appeals correctly held that
summary judgment on the claim for publication of private facts
was inappropriate because of disputed issues of material fact. The
district court had held that “[t]he public had a legitimate interest
10
JUDGE v. SALTZ
Opinion of the Court
in [Ms. Judge’s] redacted photographs because [Ms.] Judge
voluntarily placed these facts before the public . . . by appearing
on television to inform the public about choosing a good
[cosmetic] surgeon and by making representations about her
surgical results.” Judge v. Saltz Plastic Surgery, PC, 2014 UT App
144, ¶ 32, 330 P.3d 126 (first, fourth, and fifth alteration in
original) (internal quotation marks omitted). However, the
dispute as to whether there was legitimate public interest in the
photographs based on Ms. Judge’s participation in the broadcast
or whether the inclusion of those photographs was gratuitous or
overly intrusive made summary judgment inappropriate in this
case. 6
¶ 21 Saltz argues that Ms. Judge’s voluntary participation in
the interview where she discussed her surgical results gave rise to
a legitimate public interest in seeing her surgical result. Saltz also
6 In addition to the issues regarding legitimate public interest
in the context of claims for publication of private facts, the court of
appeals also addressed the requirement that “a plaintiff . . . prove
that the private fact has been disclosed publically.” Judge v. Saltz
Plastic Surgery, PC, 2014 UT App 144, ¶ 24, 330 P.3d 126. The court
of appeals correctly identified the “key question” as “whether the
communication was made in such a way that it was substantially
certain the fact would become public.” Id. As the court of appeals
points out, “[a] factfinder could very reasonably and sensibly
conclude that giving photographs to a reporter, at the request of
that reporter, knowing that the reporter was preparing a story on
the topic, made it ‘substantially certain’ that the photographs
would be published.” Id. ¶ 25. Add to this the fact that Saltz knew
the reporter requesting the photographs was interviewing
Ms. Judge for a story on the topic (in fact, Saltz had invited
Ms. Judge to participate in the story in the first place, the
interview took place at Saltz’s office, and in connection with that
interview Dr. Saltz himself conducted a mock medical
examination of Ms. Judge, which was filmed for use in the story)
and the fact that the reporter specifically asked for Ms. Judge’s
before and after pictures, and it becomes very clear that a
reasonable factfinder could well conclude that when Saltz sent
those photographs to the reporter, the photographs were
substantially certain to be published. See supra ¶¶ 4–6.
11
Cite as: 2016 UT 7
Opinion of the Court
explains that the photographs were used “to show the good
outcome Ms. Judge discussed in the story and to contrast the
photographs of the bad surgical outcome.” Ms. Judge argues that
her “consent[] to answer questions about her proceedings
generally d[id] not render every aspect of [her life], let alone her
confidential medical photographs, subject to public disclosure.”
She also maintains that “there is nothing otherwise newsworthy
about [her] particular results” and that the publication of her
photographs “neither strengthened the impact nor the credibility
of the presentations nor otherwise enhanced the public’s general
awareness of the issues and facts concerning plastic surgery.” As
the court of appeals put it, “reasonable minds could differ on
whether appearing on television to discuss cosmetic surgery gives
rise to a legitimate public interest in viewing explicit photographic
documentation of the results of the interviewee’s surgery.” Judge,
2014 UT App 144, ¶ 35. Because reasonable minds could differ as
to this issue, which is critical to the claim for publication of
private facts, summary judgment was inappropriate in this case.
III. DISPUTED ISSUES OF MATERIAL FACT
PRECLUDED SUMMARY JUDGMENT
FOR INTRUSION ON SECLUSION
¶ 22 The court of appeals correctly held that disputed issues
of material fact concerning the scope and meaning of the pre-
surgery consent forms signed by Ms. Judge precluded summary
judgment for intrusion on seclusion. Ms. Judge signed two
consent forms entitled “Consent for Surgery/Procedure or
Treatment.” One of the forms included the following language,
which is at issue in this case: “I consent to be photographed or
televised before, during, and after the operation(s) or procedure(s)
to be performed, including appropriate portions of my body, for
medical, scientific or educational purposes, provided my identity
is not revealed by the pictures.” Judge v. Saltz Plastic Surgery, PC,
2014 UT App 144, ¶ 2, 330 P.3d 126. The language of the other pre-
surgery form is “functionally identical.” Id. ¶ 2 n.1. 7 Saltz
7 The second form reads, “I consent to the photographing or
televising of the operation(s) or procedure(s) to be performed,
including appropriate portions of my body, for medical, scientific
or educational purposes, provided my identity is not revealed by
the pictures.” Judge v. Saltz Plastic Surgery, PC, 2014 UT App 144,
(cont.)
12
JUDGE v. SALTZ
Opinion of the Court
contends that this language authorized the use of Ms. Judge’s pre-
and post-operative photos in the news story about plastic surgery.
Ms. Judge disagrees.
¶ 23 One issue regarding these forms is the existence of a
Limited Consent Form used by Saltz, which Ms. Judge did not
sign. This form reads, “By signing below I give Saltz Plastic
Surgery/Renato Saltz permission to use my pictures for office
presentations, company website, and book/media publications.”
If the pre-surgery consent forms already permit the use of clinical
photographs for medical, scientific, or educational purposes in
such mediums as book and media publications, the Limited
Consent Form seems to provide no additional rights for Saltz. In
fact, Saltz has conceded that if its interpretation of the language in
the pre-surgery consent forms is correct, then the Limited Consent
Form would be redundant.
¶ 24 Aside from the issue regarding redundancy of forms, the
parties disagree about the plain meaning of the language in the
pre-surgery forms. Specifically, the parties dispute whether the
language of the pre-surgery forms authorizes release of the
photographs or authorizes interoffice use only, and they also
dispute the scope and meaning of the phrases “educational
purposes” and “my identity is not revealed by the pictures.” The
district court apparently found no ambiguity in the forms, since it
granted summary judgment on the claim for intrusion on
seclusion; the court of appeals, however, found ambiguity and
questions of fact in the pre-surgery consent forms and therefore
reversed summary judgment on this issue. Id. ¶¶ 37–43.
“[W]hether a contract is ambiguous is a question of law, which we
review for correctness.” Watkins v. Ford, 2013 UT 31, ¶ 19, 304 P.3d
841 (citation omitted). A contract term or provision is ambiguous
“if it is capable of more than one reasonable interpretation
because of ‘uncertain meanings of terms, missing terms, or other
facial deficiencies.’” WebBank v. Am. Gen. Annuity Serv. Corp., 2002
UT 88, ¶ 20, 54 P.3d 1139 (citation omitted). If there is no
ambiguity, “the contract may be interpreted as a matter of law.”
Id. ¶ 19 (citation omitted). If, however, there is ambiguity, “the
¶ 2 n.1, 330 P.3d 126. “The parties make no distinction between
the language used in each form.” Id.
13
Cite as: 2016 UT 7
Opinion of the Court
intent of the parties becomes a question of fact,” and a “motion for
summary judgment may not be granted if . . . there is a factual
issue as to what the parties intended.” Id. ¶ 22 (citations omitted). 8
As detailed below, we hold that the language of the pre-surgery
forms is ambiguous regarding whether the forms authorize the
release of photographs and regarding the scope and meaning of
the phrases “educational purposes” and “my identity is not
revealed by the pictures.”
¶ 25 Whether the language of the forms authorize release of
photographs is ambiguous. Saltz maintains that the plain
language of the forms necessarily authorizes release of
photographs: “A person cannot be televised without release of the
images to third parties [and] . . . photographs would serve no
educational purpose unless they were shown to third parties.”
Ms. Judge counters by claiming that she “did not consent to the
release of anything.” She maintains that the plain language of the
form still has meaning even without implicitly authorizing the
release of photographs, because the photographs could still be
used for “various legitimate interoffice uses,” such as to “evaluate
her surgical results” and “to analyze and improve [Dr. Saltz’s]
methods, as well as train his staff.” Thus, it is disputed whether
Ms. Judge’s signature on the forms authorized release of the
photographs or whether the scope of her consent was more
limited. Since the language of the forms is “capable of more than
one reasonable interpretation” regarding whether they authorized
release of the photographs, the forms are facially ambiguous.
¶ 26 The scope and meaning of the term “educational
purposes” as it appears in the forms are likewise ambiguous. Saltz
points out that the news story about plastic surgery was “an
educational piece for the public.” Ms. Judge likewise considered
the story educational. In fact, she was motivated to participate in
the story because of her interest in women’s health issues and her
8 Summary judgment, however, is appropriate in cases where
undisputed extrinsic evidence establishes that no genuine issue of
fact exists as to the meaning the parties intended for an
ambiguous provision. See, e.g., Willard Pease Oil & Gas Co. v.
Pioneer Oil & Gas Co., 899 P.2d 766, 770 (Utah 1995). Saltz has not
introduced such undisputed extrinsic evidence in this case.
14
JUDGE v. SALTZ
Opinion of the Court
desire to help “women make a more informed decision about how
to choose a plastic surgeon and . . . be aware of why [they] might
want to have plastic surgery and that it’s okay.” Thus, both
parties agree that the news story itself was educational. However,
Ms. Judge disputes the meaning of the term “educational
purposes” in the pre-surgery consent form, “assert[ing] that she
never understood ‘educational purposes’ ‘to mean that she was
consenting to have her nude photographs released to the media to
be aired on the evening news.’” As the court of appeals pointed
out, “the relevant inquiry is not whether the underlying news
story served an educational purpose but whether the release of
[Ms.] Judge’s photographs to the reporter promoted an
educational purpose within the meaning of the consent form.” Judge,
2014 UT App 144, ¶ 40 (emphasis added). This question has not
been resolved. Because the parties have “presented contrary,
tenable interpretations” of the scope and meaning of the term
“educational purposes,” “the language of the [forms] is
ambiguous such that the intentions of the parties cannot be
determined by the plain language of the agreement.” WebBank,
2002 UT 88, ¶¶ 19, 27 (citation omitted).
¶ 27 Finally, the parties disagree about the correct
interpretation of the form’s provision that Ms. Judge’s identity
would “not [be] revealed by the pictures.” Saltz places great
weight on the phrase “by the pictures,” arguing that the
photographs “did not show Ms. Judge’s face or reveal her
identity.” According to Saltz, to interpret the provision as
“preclud[ing] Dr. Saltz from disclosing Ms. Judge’s name in
conjunction with her pictures” would “render[] the phrase ‘by the
pictures’ meaningless.” Thus, Saltz posits that sending the
photographs to a reporter in two emails that included the phrases
“Here are Coni’s before pictures” and “[H]ere are Coni’s after
pictures” did not violate this provision. The district court agreed
with Saltz, granting summary judgment and finding no violation
because “[t]here is no notation on any photo that would identify
[Ms.] Judge.” In reversing the district court’s grant of summary
judgment on this issue, the court of appeals correctly pointed out
that there is a question of fact regarding what the form proscribes:
“[w]hile the language of the consent form may reasonably be
interpreted to be a prohibition on depicting [Ms.] Judge’s face, it
could also be read as forbidding Saltz from providing identifying
information with the photographs.” Judge, 2014 UT App 144, ¶ 42.
15
Cite as: 2016 UT 7
Opinion of the Court
Saltz argues that “it was Ms. Judge’s participation in the news
story, not the emails with Ms. Judge’s pictures attached[,] that
revealed her identity.” However, the claim that the emails with
Ms. Judge’s pictures attached—which specifically stated, “Here
are Coni’s before pictures” and “[H]ere are Coni’s after
pictures”—did not reveal Ms. Judge’s identity strains the bounds
of credulity. Under Saltz’s posited interpretation of this provision,
since every patient is required to sign such forms before surgery,
Saltz could identify any and all of its patients by name anytime it
uses their photographs, including on its company website, as long
as it does so by providing identifying information with the
photographs as opposed to the photographs themselves revealing
its patients’ identities. Saltz’s interpretation of this provision is
clearly unreasonable, and we reject that interpretation. However,
we are not in a position to adopt Ms. Judge’s interpretation as
correct as a matter of law. 9 Therefore, for purposes of this appeal,
we conclude that this provision is ambiguous.
9 The concurrence likewise rejects Saltz’s interpretation of the
provision that Ms. Judge’s identity would “not [be] revealed by
the pictures” but goes further to aver that “the only remaining
reasonable interpretation of the language, once Saltz’s theory has
been rejected, is that the language ‘revealed by the pictures’
encompasses the release of photographs accompanied by explicit
identifying labels.” Infra ¶ 33. In fact, the concurrence is “not
persuaded that there are any . . . material facts in dispute”
regarding the “scope and meaning of the pre-surgery consent
forms,” neither in regard to the “revealed by the pictures”
language nor in regard to the “educational purposes” language.
Infra ¶¶ 30, 33. At the same time, the concurrence concedes that
“Ms. Judge did not request summary judgment below[,] and we
are not in a position to grant her such relief on appeal.” Infra ¶ 33.
Despite this concession, the concurrence would effectively grant
summary judgment in favor of Ms. Judge for the claim for
intrusion on seclusion. Not only is such a grant not an option for
purposes of this appeal because Ms. Judge has not requested
summary judgment, but because no such request was made, Saltz
did not have the opportunity or incentive to explain why granting
summary judgment against it would be inappropriate and the
grant of summary judgment would deny Saltz such an
(cont.)
16
JUDGE v. SALTZ
Opinion of the Court
¶ 28 In conclusion, the language of the consent forms is
ambiguous and disputed issues of fact clearly remain regarding
the meaning of the pre-surgery consent forms in the context of the
Limited Consent Form as well as regarding the scope and
meaning of the phrases “educational purposes” and “my identity
is not revealed by the pictures,” as used in the forms. Because of
the existence of such ambiguity, “the intent of the parties [is] a
question of fact” and “extrinsic evidence must be looked to in
order to determine the intentions of the parties.” WebBank, 2002
UT 88, ¶¶ 19, 22 (citations omitted). Therefore, the court of
appeals correctly held that these disputed issues of material fact
precluded summary judgment for Ms. Judge’s claim for intrusion
on seclusion.
CONCLUSION
¶ 29 We adopt the Restatement’s legitimate public concern
element for claims for publication of private facts. Furthermore,
we hold that the court of appeals correctly applied that element to
the claim for publication of private facts and correctly found that
there are disputed issues of material fact regarding the legitimate
public concern element of the claim. Therefore, we affirm the
court of appeals’ reversal of the grant of summary judgment for
publication of private facts. We also affirm the court of appeals’
reversal of the grant of summary judgment for the claim for
intrusion on seclusion because of the disputed issues of material
fact regarding the meaning of the consent forms signed by
Ms. Judge.
opportunity.
Furthermore, such a determination would be beyond the scope
of the grant of certiorari in this case. We granted certiorari on the
question “[w]hether the court of appeals erred in reversing
summary judgment dismissing a claim for intrusion on seclusion
by holding there were disputed issues of material fact concerning
the scope and meaning of a consent form signed by Respondent.”
And we hold that the court of appeals did not err in so doing.
Infra ¶ 28. The question does not leave room for us to go further
and grant summary judgment in favor of another interpretation of
a portion of the consent form, for which summary judgment has
not even been requested.
17
Cite as: 2016 UT 7
J. DURHAM, concurring in result
JUSTICE DURHAM, concurring in the result:
¶ 30 Because I disagree with the court’s analysis in Part III, I
write separately to explain my views on the role of appellate
review of the contract at issue in this case. The majority opinion
concludes that the court of appeals correctly determined that there
were “disputed issues of material fact” concerning the scope and
meaning of the pre-surgery consent forms signed by Ms. Judge. I
am not persuaded that there are any such material facts in
dispute; the court of appeals was asked to interpret specific
contractual language, and I do not believe that Saltz has offered
any plausible interpretations of that language, let alone any
extrinsic evidence that could constitute a “fact” capable of being
disputed, that render it ambiguous. Absent ambiguity, it falls to
the appellate courts to construe the language. Mind & Motion Utah
Invs., LLC v. Celtic Bank Corp., 2015 UT 94, ¶ 24, __ P.3d __. And
courts decide as a matter of law whether a contractual provision is
ambiguous. Keith v. Mountain Resorts Dev., L.L.C., 2014 UT 32,
¶ 17, 337 P.3d 213.
¶ 31 The language in question deals with the use of
photographs taken of Ms. Judge, as follows:
CONSENT FOR SURGERY/PROCEDURE OR TREATMENT
...
5. I consent to be photographed or televised before,
during, and after the operation(s) or procedure(s) to
be performed, including appropriate portions of my
body, for medical, scientific or educational purposes,
provided my identity is not revealed by the pictures.
6. For purposes of advancing medical education, I
consent to the admittance of observers to the
operating room.
¶ 32 As the majority opinion points out, Saltz’s view of this
language renders a second form with identical language used by
his office, and called a Limited Consent Form—which Ms. Judge
did not sign—redundant. Furthermore, Saltz’s construction of the
foregoing language—that it reflects Ms. Judge’s agreement that
her medical photographs could be released with identifying
information to the commercial media—is in my view entirely
inconsistent with the consent form’s plain language. While the
term “educational,” outside of the context of this particular form,
18
JUDGE v. SALTZ
J. DURHAM, concurring in result
might be susceptible to a meaning as broad as Saltz claims here,
when read in conjunction with the use of the term “medical
education” in paragraph 6, it seems clear to me that the scope of
the term must be limited to the context of medical treatment and
related medical and scientific education. This reading is bolstered
by the nature of the document itself. The form is labeled a
“CONSENT FOR SURGERY/PROCEDURE OR TREATMENT.” It
is entirely focused on Ms. Judge’s medical treatment, including
use of tissue, risks, fees for services, use of anesthesia, etc. The
notion that it covers the release of treatment-related documents
for Saltz’s publicity-related purposes is antithetical to the idea of a
consent to treatment.
¶ 33 I also conclude that this court must construe the plain
meaning of the language “provided my identity is not revealed by
the pictures.” Actually, the majority opinion does just that—
observing that “Saltz’s interpretation of this provision is clearly
unreasonable, and we reject that interpretation.” Supra ¶ 27.
Nevertheless the majority appears to gratuitously consider the
provision to be ambiguous and declines to interpret it. I cannot
agree—the only remaining reasonable interpretation of the
language, once Saltz’s theory has been rejected, is that the
language “revealed by the pictures” encompasses the release of
photographs accompanied by explicit identifying labels, as
happened here. Once again, I do not see any disputed evidence in
this record that would support the notion of ambiguity in the
language. It is true that Ms. Judge did not request summary
judgment below and we are not in a position to grant her such
relief on appeal, but that procedural circumstance does not
require a remand for consideration of “ambiguities” or factual
disputes that do not exist in the record. We have been asked to
construe the language of the consent form, and I see no ambiguity
requiring extrinsic evidence thereof on remand.
¶ 34 But even if one of the disputed consent form provisions
were ambiguous, this court still must interpret the form as a
matter of law because the parties have not presented any valid
extrinsic evidence that would create a dispute of material fact. A
contractual ambiguity is a prerequisite to the admission of
extrinsic evidence purporting to resolve the ambiguity. Ivory
Homes, Ltd. v. Utah State Tax Comm’n, 2011 UT 54, ¶ 12, 266 P.3d
751. If, however, the parties do not present extrinsic evidence,
courts must resolve the ambiguity by using the usual
19
Cite as: 2016 UT 7
J. DURHAM, concurring in result
interpretative tools. No doubt in many cases parties do not
present extrinsic evidence that is relevant to an ambiguous term—
either because they elect not to or because there is simply no valid
extrinsic evidence to be had. In such cases, courts are required to
say what even an ambiguous contractual provision means in
order to determine the rights and obligations of the parties under
the agreement.
¶ 35 In this case, Saltz argued in the trial court that it was
entitled to summary judgment because the signed consent form
authorized it to release Ms. Judge’s pictures to the news media
with accompanying identifying information. Ms. Judge responded
by arguing that the consent form did not give Saltz this authority.
Ms. Judge also produced an affidavit in which she declared that
she “never understood ‘medical, scientific or educational
purposes’ to mean that I was consenting to have my nude
photographs released to the media.” But Ms. Judge’s personal
understanding of the meaning of the consent form’s terms is not
valid extrinsic evidence that the district court could consider. Cf.
Mind & Motion, 2015 UT 94, ¶ 42 (“[L]atent ambiguities are
objectively verifiable and ordinarily cannot be proven based on the
parties’ subjective understanding of contractual terms. Therefore,
affidavits and other evidence that fails to identify a collateral
matter are not ‘relevant’ to showing a latent ambiguity.” (footnote
omitted)).
¶ 36 Thus there was no valid extrinsic evidence relevant to
the interpretation of the consent form for the district court to
consider during the summary judgment proceeding. For this
reason, I disagree with the majority’s conclusion that “disputed
issues of fact clearly remain regarding the meaning of the pre-
surgery consent forms.” Supra ¶ 28. In the absence of any extrinsic
evidence, the only question before the district court (and this
court) is what do the phrases “educational purposes” and
“provided my identity is not revealed by the pictures” mean
within the context of the consent form? Regardless of whether
these phrases are deemed to be ambiguous or not, in the absence
of valid extrinsic evidence presented by the parties, this is a legal
question to be resolved by a court. It is not a factual question to be
resolved by a jury.
¶ 37 I therefore agree with the majority’s conclusion that
Saltz was not entitled to summary judgment on the intrusion on
20
JUDGE v. SALTZ
J. DURHAM, concurring in result
seclusion claim. But, as noted above, I arrive at this conclusion
because I have determined as a matter of law that the consent
form does not mean what Saltz says it means. I see no disputed
issues of fact to be resolved on remand regarding the proper
interpretation of the consent form.
21