Mitchell v. Baltimore Sun Co.

KENNEY, J. Parren J. Mitchell appeals the judgment of the Circuit Court for Baltimore City granting summary judgment to the Baltimore Sun Company, Walter F. Roche, Jr., and Ivan L. Penn (collectively, “appellees”) on his claims of trespass, intrusion upon seclusion, and intentional infliction of emotional distress. He poses one question, which we have reworded and recast as follows: I. Did the circuit court err in granting summary judgment on the trespass count?

II

Did the circuit court err in granting summary judgment on the intrusion upon seclusion count?

III

Did the circuit court err in granting summary judgment on the intentional infliction of emotional distress count? For the following reasons, we answer “yes” to questions one and two, and “no” to question three. FACTUAL AND PROCEDURAL BACKGROUND In early 2002, Walter F. Roche, Jr. and Ivan L. Penn, both reporters for the Baltimore Sun Company (“Baltimore Sun”), were informed that various bills incurred in the name of former Congressman Parren Mitchell were not being paid. ⁵⁰³ Investigating the report further, Roche and Penn discovered, through public documents, that several creditors had obtained judgments and liens against former Congressman Mitchell as a result of outstanding debts. Believing that news of the former Congressman’s financial difficulties was of interest to the public, Roche and Penn decided to write a news article on the matter.

They considered it important to their story to interview Congressman Mitchell. Aware that he was living at the Keswick Multi-Care Center (“Keswick”), the reporters decided to visit him on May 29, 2002. Although they were also aware that he was elderly and in failing health, neither reporter attempted to contact the Congressman, his family, or Keswick prior to their visit. On May 29, 2002, Roche and Penn arrived at Keswick at approximately 6:45 p.m., during regular visiting hours.

Entering the building, neither reporter saw signs stating: “SECURITY NOTICE All Visitors Must Report to Reception” or “NO TRESPASSING NO SOLICITING.” Inside, Penn signed his name in a book at the reception/security desk and wrote that he was visiting “Parren Mitchell.” Roche did not sign the book, later stating that he thought it unnecessary for both he and Penn to sign in. While at the security/reception desk, the security person/receptionist did not instruct the reporters as to any sign-in procedure, did not ask them any questions, including their identities, and did not request Roche to sign in. Neither of the reporters informed the person at the desk of the purpose of their visit, nor were they wearing anything to identify themselves as reporters. After passing the security/reception desk, Roche and Penn walked to Congressman Mitchell’s room.

According to them, the door to his room was open and there was no sign on his door indicating that visitors were restricted from entering. Standing outside of Congressman Mitchell’s room, Roche and Penn claimed that the Congressman had been speaking to his private duty nurse, Ella Simpson. They waited for a lull in the conversation before entering. ⁵⁰⁴ The reporters aver that, when they entered the room, the Congressman was sitting in his chair. They greeted him and identified themselves as reporters for the Baltimore Sun.

They questioned the Congressman concerning bills that had not been paid and the recent purchase of a car by the Congressman’s nephew, Michael Mitchell. Roche and Penn posit that Congressman Mitchell was receptive to the interview and answered their questions. Additionally, at no time during the interview did Simpson or any member of the Keswick staff ask the reporters to terminate the interview or leave the facility. That version of events is supported by the affidavit of Simpson, who was Congressman Mitchell’s private duty nurse. 1 According to Simpson, she was caring for the Congressman on May 29, 2002, between seven o’clock and eleven o’clock in the evening.

At that time, there were no signs on the door indicating that visitors were restricted from entering, and in the past, the Congressman regularly received unannounced visitors. Early that evening, Simpson recalled that, while she was present, two men entered Congressman Mitchell’s room and identified themselves as reporters for the Baltimore Sun. According to Simpson, she remained for the entire ten-minute interview. She remembered that Congressman Mitchell was receptive to the reporters’ questions and “[a]t no time during the reporters’ visit did [Congressman] Mitchell ask the reporters to leave his room or ask me to escort them from his room.” In the past, Simpson recalled that, when the Congressman received unwelcome visitors, he would ask her to escort them out.

At the conclusion of the interview, Simpson recalled that she thanked the reporters for coming and that the Congressman did not appear upset or agitated by the visit or the interview. Following Roche and Penn’s departure, Simpson remembered that the Congressman called his nephew, Michael Mitchell. At Michael Mitchell’s request, the Congressman’s vital signs were checked later that evening and they appeared normal. ⁵⁰⁵ Congressman Mitchell’s recollection of the events of the evening of May 29, 2002, is starkly different. According to the Congressman, he was alone in his room lying on his bed and preparing to take a nap when Roche and Penn entered unannounced and began questioning him regarding unpaid bills.

He could not remember whether his door was open or closed at the time, but he assumed that it was closed “because he was taking a nap.” He contends that the Baltimore Sun reporters did not identify themselves as such, but he “didn’t have to ask them because when they told me why they were there, I knew that only one party was involved in that, and that was [t]he Sun Paper.” He repeatedly asked the men to leave his room, but when they did not comply, the Congressman answered their questions regarding the outstanding bills and recent car purchase by Michael Mitchell. In addition to asking questions, Congressman Mitchell asserts that one of the reporters looked through some files that he had in a filing cabinet, box, or on a desk near his bed. Shortly after the reporters began asking questions, Simpson came into the room. The Congressman recalled that at no time did Simpson or anyone from Keswick request that Roche or Penn leave his room.

Following the reporters’ visit, Congressman Mitchell claims that he became “short of breath.” He remembered, however, that he did not call the nurse’s station on his floor and that he was not examined by any of Keswick’s medical staff following the reporters’ visit. On June 7, 2002, Congressman Mitchell filed a lawsuit against the Baltimore Sun Company, Roche, and Penn in the Circuit Court for Baltimore City alleging Trespass (Count I), Intentional Infliction of Emotional Distress (Count II), and Invasion of Privacy/Intrusion Upon Seclusion (Count III). For relief, Congressman Mitchell sought $1,000,000 in damages for each Count and $750,000,000 in total punitive damages. Appellees timely filed an answer, and following extensive discovery, on February 2, 2004, appellees moved for ⁵⁰⁶ summary judgment with regard to all of Congressman Mitchell’s claims.

A hearing was held in the circuit court on March 24, 2004. Ruling from the bench, the circuit court granted appellees’ motion with regard to all counts. With regard to the trespass count, the court found that there was no dispute of material fact that Congressman Mitchell answered the reporters’ questions and that Simpson was present during the entire interview. Pursuant to Machleder v. Diaz, 538 F.Supp. 1364 (S.D.N.Y.1982), which the circuit court found controlling, the Congressman’s responses and Simpson’s acquiescence constituted consent to the reporters’ presence and an affirmative defense to trespass.

Concerning the intrusion upon seclusion claim, the circuit court found that, because he voluntarily consented to answer the questions posed, Congressman Mitchell could not assert that the reporters’ conduct was intrusive. Finally, with regard to the intentional infliction of emotional distress count, the court concluded that the reporters’ conduct did not rise to the required level of “shockfing] the public conscious.” The following day, the circuit court issued an order to that effect. This timely appeal followed. STANDARD OF REVIEW Under Maryland Rule 2 — 501(f), a court “shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” We review “a trial court’s grant of a motion for summary judgment de novo.” Remsburg v. Montgomery, 376 Md. 568, 579 , 831 A.2d 18 (2003).

See also Todd v. Mass Trans. Admin., 373 Md. 149, 154 , 816 A.2d 930 (2003); Beyer v. Morgan State Univ., 369 Md. 335, 359 , 800 A.2d 707 (2002); Schmerling v. Injured Workers’ Ins. Fund, 368 Md. 434, 443 , 795 A.2d 715 (2002). “The trial court will not determine any disputed facts, but rather makes a ruling as a matter of law. The standard of appellate review, therefore, is whether the trial court was ⁵⁰⁷ legally correct.” Williams v. Mayor of Baltimore, 359 Md. 101, 114 , 753 A.2d 41 (2000) (internal citations omitted).

When reviewing a grant of summary judgment, we first determine whether a genuine dispute of material fact exists “and only where such dispute is absent will we proceed to review determinations of law.” Remsburg, 376 Md. at 579 , 831 A.2d 18 . “In so doing, we construe the facts properly before the court, and any reasonable inferences that may be drawn from them, in the light most favorable to the non-moving party.” Id. at 579-80 , 831 A.2d 18 . The Court of Appeals has held that general denials and proffered facts, lacking detail and precision, are insufficient to defeat a properly plead motion for summary judgment. Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737-38 , 625 A.2d 1005 (1993) (citing Lynx, Inc. v. Ordnance Prods., Inc., 273 Md. 1, 7-8 , 327 A.2d 502 (1974)). Instead, the party opposing a motion for summary judgment must present facts that are detailed and admissible in evidence.

Beatty, 330 Md. at 737-38 , 625 A.2d 1005 . “[T]he mere presence of a factual dispute in general will not render summary judgment improper.” Remsburg, 376 Md. at 579 , 831 A.2d 18 . As the Court explained in Lippert v. Jung, 366 Md. 221 , 783 A.2d 206 (2001), “A dispute as to facts relating to grounds upon which the decision is not rested is not a dispute with respect to a material fact and such dispute does not prevent the entry of summary judgment.” Id. at 227 , 783 A.2d 206 (quoting Salisbury Beauty Schs. v. State Bd. of Cosmetologists, 268 Md. 32, 40 , 300 A.2d 367 (1973)) (emphasis in Lippert). “Where the record shows that there was no such genuine dispute as to any material fact necessary to resolve the controversy as a matter of law, and it is shown that the movant is entitled to judgment, the entry of summary judgment is proper.” Lynx, 273 Md. at 8 , 327 A.2d 502 (citing Selected Risks Ins. Co. v. Willis, 266 Md. 674 , 296 A.2d 424 (1972)). “Finally, [i]n reviewing [the circuit court’s] decision to grant a motion for summary judgment, we evaluate ‘the same material from the record and decide [ ] the same legal issues as the ⁵⁰⁸ circuit court.’ ” Campbell v. Lake Hallowell Homeowners Ass’n, 157 Md.App. 504, 518-19 , 852 A.2d 1029 (2004) (citations omitted). We “uphold the grant of a summary judgment only on the grounds relied on by the trial court.” Id. at 519 , 852 A.2d 1029 (quoting Ashton v. Brown, 339 Md. 70, 80 , 660 A.2d 447 (1995)).

DISCUSSION I. We first consider Congressman Mitchell’s contention that the circuit court erred in granting appellees’ summary judgment on his trespass claim. A trespass is a tort involving “an intentional or negligent intrusion upon or to the possessory interest in property of another.” Ford v. Baltimore City Sheriffs Office, 149 Md.App. 107, 129 , 814 A.2d 127 (2002). In order to prevail on a cause of action for trespass, the plaintiff must establish: (1) an interference with a possessory interest in his property; (2) through the defendant’s physical act or force against that property; (3) which was executed without his consent. Ford, 149 Md.App. at 129 , 814 A.2d 127 .

(citing Richard J. Gilbert & Paul T. Gilbert, Maryland Tort Law Handbook § 8.2 (3d ed.2000)). Because appellees do not argue otherwise, we will assume for purposes of this appeal that Congressman Mitchell had a sufficient possessory interest in the nursing home room to maintain a trespass claim for its intrusion. The plaintiff need not demonstrate that the defendant’s intrusion was committed with tortious intent, but must establish that the defendant consciously intended to do the “act that constitutes entry upon [the plaintiff’s] real or personal property.” Baltimore Gas & Elec. Co. v. Flippo, 112 Md.App. 75, 85 , 684 A.2d 456 (1996), aff'd, 348 Md. 680 , 705 A.2d 1144 .(1998).

Because the interference must be without the plaintiffs consent, consent, either expressed or implied, constitutes a complete defense, so long as the scope of that consent is not exceeded. See Brazerol v. Hudson, 262 Md. 269, 273 , 277 A.2d 585 (1971) (noting that, where the plaintiff ⁵⁰⁹ gave permission for an intrusion upon real property, there was no “unauthorized entry and hence no trespass”). It is undisputed that, upon entering Keswick, Roche and Penn checked in at the security/reception desk, where Penn signed his name to a sign-in book and indicated that he was visiting with Congressman Mitchell. What occurred after-wards, however, is disputed.

Roche and Penn claim that they lingered outside of the open door to the Congressman’s room for a lull in the Congressman’s conversation before entering. Upon doing so, the reporters contend that they identified themselves as reporters from the Baltimore Sun, cordially interviewed the Congressman, and left. This account is supported by Simpson’s affidavit. In her affidavit, Simpson stated that she was present during the entire interview, that the Congressman was receptive to the reporters’ questions, and that “[a]t no time during the reporters’ visit did [Congressman] Mitchell ask the reporters to leave his room or ask [her] to escort them from the room.” In contrast, Congressman Mitchell claims that when Roche and Penn entered his room he was alone preparing to take a nap.

He could not remember whether his door was open or closed. When the reporters began asking questions, he knew that they were from the Baltimore Sun. He claims that he repeatedly told the reporters to leave, but they continued asking questions. He answered their questions only “in an effort to defend himself and his family.” He also witnessed one of the reporters “rifling” through some files that he had in a filing cabinet, in a box, or on a table near his bed.

According to the Congressman, Simpson did not enter the room until after the reporters had questioned him and after he had asked them to leave. Congressman Mitchell does not dispute that Simpson did not ask Roche and Penn to leave the room. On appeal and in support of their motion for summary judgment, appellees contend that, even if Congressman’s Mitchell’s deposition testimony were to be believed, their entry into the Congressman’s room was consented to under three alternative theories, thus establishing an affirmative ⁵¹⁰ defense to the Congressman’s trespass claim. First, appellees claim that their entrance into the Congressman’s room was consented to by custom, and therefore, they claim, it is of no consequence that they entered the Congressman’s room uninvited and unannounced.

Second, appellees assert that, even if their initial entry to the Congressman’s room were considered a trespass, by subsequently answering their questions, Congressman Mitchell “impliedly consented to their presence, thereby converting them from possible trespassers to invitees.” Third, appellees contend that Simpson, an employee of Congressman Mitchell’s, expressly and impliedly consented to their presence, precluding Congressman Mitchell’s trespass claim as a matter of law. Finally, appellees concede that, if credited, Congressman Mitchell’s assertion that one of the reporters “rifled” through his papers would exceed the scope of any consent given. They maintain, however, that neither we nor the circuit court are required to credit the Congressman’s deposition testimony because it is incredible, “insubstantial and spurious.” A. Implied Consent Through Custom. Appellees contend that, even if they entered Congressman Mitchell’s private nursing room unannounced and uninvited, their entry did not constitute a trespass because it is customary to do so.

According to appellees, once they signed in at the security/reception desk, they were permitted to enter the room of any occupant whom they indicated in the sign-in book they intended to visit. In furtherance of that argument, appellees direct our attention to the fact that some of Congressman Mitchell’s confidants visited him in his room unannounced and uninvited. Additionally, appellees assert that the Congressman’s family desired him to have visitors. As stated above, consent, whether expressed or implied, is a complete defense to a claim of trespass.

Brazerol, 262 Md. at 273 , 277 A.2d 585 . The Restatement (Second) of Torts § 892 states: (1) Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be ⁵¹¹ communicated to the actor. (2) If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.

Id. Comment d. to that section provides: In determining whether conduct would be understood by a reasonable person as indicating consent, the customs of the community are to be taken into account. This is true particularly of silence or inaction. Thus if it is the custom in wooded or rural areas to permit the public to go hunting on private land or to fish in private lakes or streams, anyone who goes hunting or fishing may reasonably assume, in the absence of a posted notice or other manifestation to the contrary, that there is the customary consent to his entry upon private land to hunt or fish.

Id. (emphasis added). While we are persuaded that the reporters’ entrance to the common areas of the Keswick nursing facility was permitted and that they complied with the visitor regulations established by that facility, we are not persuaded that, as a matter of law, their unannounced entry into the private nursing room of one of Keswick’s occupants was within the scope of customs prevailing in the community. Even if we assume that the door to Congressman Mitchell’s room was open when Roche and Penn entered, we are not persuaded that it is customary to enter such a room without the visitor first announcing his or her presence and requesting permission to enter.

On May 29, 2002, Congressman Mitchell was a full time resident of Keswick. His private room was, for all intents and purposes, his home. To be sure, persons may extend to intimate friends and relatives an open invitation to their homes, and may even desire them to enter unannounced, as Congressman Mitchell may have done. But, even in our most neighborly communities, it is not customary to enter another’s home, uninvited and unannounced, without first being granted permission to do so.

Moreover, an open invitation to friends and family members does not imply the grant of an ⁵¹² open invitation for other members of the community to enter at their will. See Green v. Chicago Tribune Co., 286 Ill.App.3d 1 , 221 Ill.Dec. 342 , 675 N.E.2d 249 (1996) (holding, among other things, that statements made by a mother to her deceased son in a private hospital room and overheard by newspaper reporters, were not made in a public place to defeat the mother’s privacy expectation and that “[t]he general public surely had no right to resort” there). Our conclusion that it would not have been customary for Roche and Penn to enter Congressman Mitchell’s private nursing room, unannounced and uninvited, is bolstered indirectly by the provisions established by the General Assembly in Maryland Code (1982, 2005 Repl.Vol.), §§ 19-342-345 of the Health General Article (“H.G.”), also known as the “Nursing Home Resident’s Bill of Rights.” See e.g., Oak Crest Village, Inc., v. Murphy, 379 Md. 229, 240 , 841 A.2d 816 (2004) (referring to, and discussing, the “Nursing Home Resident’s Bill of Rights”). H.G. § 19-343(a) governs application of the Nursing Home Resident’s Bill of Rights, and it brings within its scope “facilities” defined by the rules of the Department of Health and Mental Hygiene as “comprehensive care facilities.” COMAR § 10.07.02.01(6) defines a “comprehensive care facility” as “a facility which admits patients suffering from disease or disabilities or advanced age, requiring medical service and nursing service rendered by or under the supervision of a registered nurse.” Clearly, Keswick was a comprehensive care facility at the time Congressman Mitchell was a resident, and thus, subject to the provisions of the Act.

H.G. § 19-344 provides, in relevant part: (o) Privacy.-{1) A resident of a facility shall enjoy privacy in the room of the resident. (2) Unless the staff member knows that the resident is asleep, the member shall knock on the door before the member enters the room of the resident. (Emphasis added). Although we recognize that the provisions of the Nursing Home Resident’s Bill of Rights apply to qualified care facilities ⁵¹³ and their employees, we find the privacy provisions contained therein indicative of community values.

Accordingly, we disagree with appellees’ assertion that it was customary within the community to enter the private room of a nursing home resident unannounced and uninvited. Moreover, consent implied through custom is only effective “in the absence of a posted notice or other manifestation to the contrary.” Restatement (Second) of Touts § 892 cmt. d. Congressman Mitchell maintains that he asked the reporters to leave after they entered his room. Just as a hunter on piivate land could not reasonably assume consent to continue his pursuit of quarry after the owner of the land requests that he leave, appellees cannot avail themselves of the defense of implied consent on a motion for summary judgment where there is a dispute of material fact regarding whether Congressman Mitchell told them to leave his private nursing room.

B. Implied Consent Through Acquiescence. Appellees next argue that, because Congressman Mitchell answered their questions, he implicitly consented to their presence. In support of that argument, appellees cite, and the circuit court relied upon, Machleder v. Diaz, 538 F.Supp. 1364 , (S.D.N.Y.1982), and Reeves v. Fox Television Network, 983 F.Supp. 703 (N.D.Ohio 1997), among others. None of these cases is controlling and we find them readily distinguishable from the present case.

In Machleder , an investigative television reporter inquired into how Flexcraft Industries disposed of certain chemicals used in its manufacturing processes. 538 F.Supp. at 1367 . Pursuant to an anonymous tip, the reporter went to a lot adjacent to Flexcraft, where he saw several abandoned chemical barrels strewn about. Erroneously believing that the barrels were on Flexcraft property, the reporter and his crew approached the Flexcraft building. 2 Although it was disputed ⁵¹⁴ whether the reporter or the camera crew actually entered the facility, it was undisputed that the television crew filmed the inside of the plant. Upon seeing the television crew, Bruce Machleder, the manager’s son, told them to stop filming.

When he was asked about the chemical drums, Bruce Machleder directed the television crew to go to the office at the front of the building. While the crew were on their way to the office, the reporter witnessed Irving Machleder (“Machleder”), whom he correctly determined to be Flexcraft’s manager, leaving the building. With his camera crew filming, the reporter approached Machleder and repeatedly questioned him about the discarded barrels. Although Machleder became visibly upset from the questioning and told the crew to stop filming, he did not tell the crew to leave the property, but instead retreated to his office and shut the door.

Id. Claiming later that Bruce Machleder authorized him to enter, the reporter followed Machleder into his office, where, upon further questioning, Machleder informed the reporter that he had notified the authorities of the abandoned barrels on the neighboring property. That evening the television station aired a segment in which the reporter explained the presence of the barrels and explained that Machleder had indeed informed the authorities about them. Machleder subsequently filed suit against the reporter and television station alleging, among other claims, trespass and intrusion upon seclusion.

Id. at 1369 . Granting summary judgment on Machleder’s trespass claim, the United