Privacy/Public Health Reporting and Testing

Does the Conditional Privilege for Public Health and Safety Reporting Extend to Reports to Neighbors? - Schmitz v. Aston, 197 Ariz. 264, 3 P.3d 1184 (Ariz.App. Div. 2000)

Rehearing Denied, case designated not-report, Schmitz v. Aston, 199 Ariz. 431, 18 P.3d 1230 (Ariz. 2001)

This is an interesting case. Simplifying a complex set of facts, defendants believed that their 5 year old daughter had been sexually molested by plaintiff. A pediatric exam could not rule out abuse so the physician reported the case to child protective services. A police investigation disclosed no evidence of abuse, but this did not satisfy the defendant parents. They sought psychiatric care for their daughter, telling the provider that she had been molested. After months of therapy, the child still did not admit to molestation, but did say that the plaintiff might have touched her buttocks once or twice while baby-sitting her and his own daughter. This was reported to the police, who again found no basis to charge the plaintiff with molestation. Dissatisfied, defendants began telling their neighbors with children that plaintiff was a child molester. Neighborhood tensions escalated and resulted in this lawsuit. Plaintiff sued for defamation and intentional infliction of emotional distress and received a jury award of nearly $2,000,000, including punitive and emotional damages. The trial judge reduced the damages to approximately $500,000 and the defendants appealed.

Defendants' core claim is that the case should never have been submitted to the jury because the trial court found that they had a conditional privilege to warn, and that such a privilege could only be overcome if plaintiffs proved that they acted with actual malice. This conditional privilege argument only applied to reports to the neighbors. It is clear that reports to the police by the defendant parents were privileged unless it can be proven they were in bad faith. The reports by the health care providers to Child Protective Services were likewise privileged and could not form a basis for a tort claim. The appeals court analyzed this claim of conditional privilege in detail, finding it an important question of first impression nationally, with only one other case addressing a related issue in another jurisdiction.

The trial court's conditional privilege was based on a policy argument, without specific legal authority: The court stated that "publication to neighbors of one's good faith suspicions 'there is someone in the neighborhood that may have molested their children' ... is of grave, social importance." On appeal, the defendants argued "...that three factors justify a grant of a conditional privilege in this case: (1) protection of the interest of the recipient or third person; (2) common interest; and (3) public policy." In looking for legal guidance, the appeals court turned to Restatement of Torts sec. 595: for its standard on when a publication is conditionally privileged, "...[if] there is information that affects a sufficiently important interest of the recipient or third person" and the publisher is under a legal duty to publish the defamatory matter, or publication to the recipient "is otherwise within the generally accepted standards of decent conduct." Since the law only required this information to be reported to the police, the court had to determine whether telling the neighbors fell with the ambiguous standards of decent conduct. The court recognized that this conditional privilege has been applied to situations such as previous employers warning new employers about dangerous employees, reports by private investigators to employers, and several other situations where either a request was made for the information or there was a familial relationship between the persons sharing the information. In this case, there was no evidence that the neighbors asked about whether the plaintiff was a child molester, rather, it was clear that the defendants volunteered this information. The court was also unwilling to accept that being in the neighborhood constituted a legal relationship that would support a conditional privilege.

Defendants' final argument is that such private notification is good public policy and was endorsed by Arizona's legislature when it passed Arizona's version of Megan's law requiring community notification of sex offenders in the area, as well as creating an Internet Sex Offender web site. While the court recognizes that Arizona does favor community notification of the whereabouts of sex offenders, it distinguishes these statutes on two grounds. First, they control who can disseminate the information and the form of dissemination. Second, and most important, they are predicated on a criminal conviction for a sex offense. With no conviction, or even sufficient evidence to indict plaintiff, the court found that plaintiff's right in his reputation outweighed any community benefit. They reiterated that the defendants had access to the police and that the police had investigated the case. The court was not willing to let the defendants second guess the police with their private notification system. Thus the appeals court rejected the trial court's finding of conditional privilege, and with it, defendants' claims that plaintiff had not established that defendants acted with actual malice. The court did agree that the damages were excessive, in that they greatly exceeded defendants' net worth and ability to pay. The case was remanded with instructions to the district court on remittitur.

This is an important case of first impression on the right of non-government employees to warn third parties about potentially dangerous individuals. The case has a good discussion of the defamation and intentional infliction of emotional distress claims that can arise from such warnings, as well as useful authority on conditional immunity as applied to legally mandated health and safety reports in the absence of specific state statutes creating immunity for legally mandated reports.