Klipa v. BD. OF EDUC. OF AA CTY.

Liss, J., delivered the opinion of the Court. This case arises out of a declaration filed in the Circuit Court for Anne Arundel County by the appellants herein, the parents and next friends of Kelly Trina Klipa, against the Board of Education of Anne Arundel County, and Hermais Rogers, administrator of Andover Phoenix Center Program, the appellees herein. The minor plaintiff was, in the fall of 1980, a student in the Anne Arundel County school system. Because of various difficulties in the regular school program she had been assigned in the ninth grade to a program designated as the Phoenix Center Program, operated by the Anne Arundel school system at a facility located in Andover, Maryland.

During the time she was a student in the Anne Arundel school system she had various psychological reports and recommendations made a part of her school records. In the fall of 1980, when Kelly reached 16 years of age, she withdrew from the Anne Arundel school system. Shortly thereafter, as a result of a family conference, it was agreed that Kelly was to go to live with an older, married sister located in New York State. It was also agreed that Kelly was to enroll in the Sauquoit Valley Central School in New York State.

In order to enroll in this school it was necessary that Kelly submit to the new school the records of the Anne Arundel County school system concerning her academic background. Kelly’s parents communicated with a Mrs. Paumier, a psychologist employed by the Anne Arundel County school system, and advised Mrs. Paumier that they wanted only Kelly’s academic records sent to the new school and requested that the psychological and behavioral records be withheld. Kelly’s mother was referred to Mrs. Rogers, one of the defen ⁶⁴⁶ dants in this case, who agreed to submit only the academic records to the new school. Both of Kelly’s parents went to the school and signed a document designated as a "Consent for Record Release” on a form prepared by the appellees herein.

The document purported to give the Anne Arundel County Public Schools System permission to release all of Kelly’s records concerning personal and family information, attendance data, grades, standardized tests, health, vision and hearing, and school activity. The permission specifically did not include physical, behavior, or psychological referrals. Kelly’s parents contended that Mrs. Rogers agreed to send only those records authorized to be sent. It is conceded that other employees of the Anne Arundel School System inadvertently mailed Kelly’s entire school record, including the psychological reports, to the principal of the Sauquoit Valley Central School.

The appellants further contended that as a result of the release of Kelly’s psychological reports and referrals to the school to which she was transferred, she became known as a person with psychological problems. They stated that the information was disseminated to the principal of the school, teachers, guidance counsellors, social workers and other students, and that as a direct result of the unlawful actions of the Anne Arundel school authorities she sustained an unwarranted invasion of her privacy. As a result of this invasion of her privacy, Kelly allegedly was caused to suffer public scorn and ridicule, the contempt of her fellow students, embarrassment, humiliation, and severe mental distress. Appellants demanded compensatory and punitive damages.

The case came to trial before a jury. At trial, Kelly testified that when she first transferred to the school in New York that she had no difficulty in making friends; however, after she had been at the school for several weeks, she noticed a change in the attitude of the children toward her. She contended this caused her to withdraw from the students and that she became severely depressed. In the course of her direct examination counsel attempted to elicit ⁶⁴⁷ from her what several of her schoolmates had told her was the reason for the change of attitude toward her.

He suggested the evidence was admissible as part of the res gestae, but the trial judge ruled that this testimony was clearly hearsay and not admissible under any of the hearsay exceptions. A licensed clinical psychologist appeared on behalf of the plaintiff and was permitted to testify as an expert witness. He stated he had treated the plaintiff since 1976. When she left for New York she was no longer in need of professional treatment.

About three months later she was in need of extensive treatment for chronic depression, a new problem which arose after the move to New York. It was his opinion that the release of the information from the school records into the community caused the minor plaintiff to be mislabeled and socially ostracized. At the conclusion of the appellants’ case, appellees moved for a directed verdict on each count of the declaration. The trial judge granted the motion as to the count requesting punitive damages but reserved the motion as to the other counts.

Appellees then offered the testimony of Mrs. Rogers, who testified that the psychological records were apparently sent by mistake by another employee of the Andover Phoenix Center Program and that it had been her intention to exclude the psychological information from the records. Appellees then offered Edward Miller, Director of Public Services of the Anne Arundel County Public Schools, who stated that the Board of Education had the right to send the complete record of a transferring pupil without the consent of the parents under the applicable C.O.M.A.R. regulations. Appellees’ evidence was concluded by reading into the record the deposition of a Mr. William Moll, the principal of the school to which Kelly had transferred, and which she was still attending at the time of trial. Mr. Moll stated that her grades at the school were average or better, and that she had had no unusual emotional problem of adjustment that he was aware of since her transfer.

He received her records from ⁶⁴⁸ Anne Arundel County and gave them to the Guidance Director of the school. So far as he knew no other person had access to the records, which were kept under lock and key by the Guidance Director. No use of the psychological records had been made in Kelly’s case because it did not become necessary. At the conclusion of the appellees’ case, they again moved for directed verdict and the motion was granted by the trial judge.

It is from that judgment that this appeal was seasonably filed. Appellants raise the two following issues to be answered by this appeal: 1. Did the trial court err in refusing to allow the minor plaintiff to testify concerning what she was told by her fellow students in New York? 2. Was there legally sufficient evidence of unwarranted invasion of plaintiff s privacy which required the case to be submitted to the jury? 1.

Appellants suggest that the trial court erred.when it refused to allow the minor plaintiff to testify as to what was said to her by fellow students in New York. In their brief they suggest the evidence should have been permitted to come in as part of the res gestae. In support of their position they offer the treatise by Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.J. 229 (1922), cited by this Court in the cases of Cluster v. Cole, 21 Md. App. 242 , 319 A.2d 320 (1974), and Honick v. Walden, 10 Md. App. 714 , 272 A.2d 406 (1971). The problem in this case is that no foundation for the determination of whether the trial judge erred is found in the record extract.

The only evidence offered by the minor plaintiff in response to her counsel’s questions was as follows: Q And when you first got there, were you able to make friends with the people in the community? ⁶⁴⁹ A Yes. Q And did you have friends in school? A Yes, a lot. Q And how long did you — well, did there come a time when there was a change in this situation?

A Yes. Q And approximately when did this occur? A A week later, a week, week and a half. Q And what happened?

A Nobody would talk to me any more. They just were cold to me. I would say, hi, they would say, hi, and that would be it. Q Now, were you able to determine what was wrong?

MR. BOLGIANO: I object. COURT: Sustained. If they told her what was wrong, that would be hearsay.

MR. AYRES: Well, not if — I asked her if she could determine, not if somebody told her. COURT: Well, the only way she could determine it is by someone telling her. Wouldn’t it be?

MR. AYRES: Or an event that happened. COURT: I think you would have to rephrase it. MR.

AYRES: Okay, I’ll rephrase it. Q Did some event happen that gave you an idea of — of why this situation changed? A Yes. Some — some kids were laughing at me, and some of them mentioned a psychiatrist.

MR. BOLGIANO: Objection, and move to strike. COURT: Strike it. We find nothing in this testimony which would render it admissible as a part of the res gestae.

No proffer was made ⁶⁵⁰ as to the facts and circumstances surrounding the occurrence of the alleged incident. There was no foundation laid to present the circumstances under which the person making the alleged remark about the psychiatrist made it as a result of a spontaneous and instinctive reaction under such circumstances as to show a lack of forthought or deliberate design on the part of the declarant. The statements were supposedly made by more than one person, none of whom was under oath or subject to cross-examination, and under circumstances so inherently untrustworthy as to preclude their admission as res gestae. 1 2. Maryland Rule 552 a states: In an action tried by a jury any party may move, at the close of the evidence offered by an opponent or at the close of all the evidence, for a directed verdict in his favor on any or all of the issues.

Such motion shall state the grounds therefor. An objection on behalf of the adverse party to such motion shall be entered as of course. In ruling upon a motion for a directed verdict, the court must resolve all evidentiary conflicts and inferences that may naturally and legitimately be deduced therefrom in favor of the plaintiffs right to recover. Plitt v. Greenberg, 242 Md. 359 , 219 A.2d 237 (1966); Langville v. Glen Burnie Coach Lines, Inc., 233 Md. 181 , 195 A.2d 717 (1963); Smith v. Bernfeld, 226 Md. 400 , 174 A.2d 53 (1961).

The Court of Appeals in the case of Plitt v. Greenberg, supra, stated: This Court has always maintained that if there be any legally relevant and competent evidence, however slight, from which a rational mind could infer a fact in issue, then a trial court has invaded the province of the jury by declaring a directed verdict. Geschwendt v. Yoe, 174 Md. 374, 381 , 198 A. 720 ⁶⁵¹ (1938); Hanrahan v. Baltimore, 114 Md. 517, 535 , 80 A. 312 (1911) and prior Maryland cases cited therein. Judge Horney, for the Court, in Smack v. Jackson, 238 Md. 35, 37 , 207 A.2d 511 (1965) stated the rule succinctly when he said: "[A] party is not entitled to a directed verdict in his favor unless the facts and circumstances are such as to permit of only one inference with regard to the issue presented.” [ 242 Md. at 368 ]. The Court of Appeals has had several cases before it in which it has considered the tort of invasion of privacy.

In Carr v. Watkins, 227 Md. 578 , 177 A.2d 841 (1962), it initially announced that in a "proper case” the tort of unwarranted interference with an individual’s privacy would be recognized in Maryland. In