Negligence & Intentional Tort

This summary also appears under Contracts


Issues: Invasion of privacy claim arising from the accidental availability of patient records on the Internet; Doe v. Mills; Lansing Ass'n of Sch. Adm'rs. v. Lansing Sch. Dist. Bd. of Educ.; Whether invasion of privacy is an intentional tort; Smith v. Calvary Christian Church; Winstead v. Sweeney; Whether there is a cause of action for invasion of privacy premised on negligent conduct; Granger v. Klein (ED MI); Randolph v. ING Life Ins. & Annuity Co. (DC); Snakenberg v. Hartford Cas. Ins. Co. (SC); The availability of damages to compensate for the procurement of identity theft protection; Negligence claim; "Present injury"; Henry v. Dow Chem. Co.; Breach of contract claim; Dunn v. Bennett; Ferguson v. Pioneer State Mut. Ins. Co.; Alan Custom Homes, Inc. v. Krol; McEwen v. McKinnon; "Presumed" damages argument; Adams v. Cleveland-Cliffs Iron Co.; Summary disposition under MCR 2.116(C)(10); Village of Dimondale v. Grable; New Freedom Mtg. Corp. v. Globe Mtg. Corp.; Class certification; MCR 3.501(A); A & M Supply Co. v. Microsoft Corp.; Zine v. Chrysler Corp.

Court: Michigan Court of Appeals (Published)

Case Name: Doe v. Henry Ford Health Sys.

e-Journal Number: 58912

Judge(s): Per Curiam – Murray, Saad, and Hoekstra


In an issue of first impression, the court held that invasion of privacy is an intentional tort, and that there is no cause of action in Michigan for invasion of privacy premised on negligent conduct. The court also held that the plaintiff's identity theft protection services were not cognizable damages in the absence of present injury. Thus, the trial court should have granted the defendants summary disposition on her invasion of privacy, breach of contract, and negligence claims. The court also reversed the trial court's grant of class certification because plaintiff was not a qualified class representative. Plaintiff and the other members of the certified class were patients who had doctor's visits at defendant-Henry Ford Health Systems between 6/3/08 and 7/18/08. Defendant-Perry Johnson & Associates provides transcription services for Henry Ford involving patient records. The case arose "from an error by Perry Johnson's subcontractor" that led to the availability of patient records on the Internet. "The information made accessible included the patient's name, medical record number, the date of the patient's visit, the location of the visit, the physician's name and a summary of the visit." Defendants argued that invasion of privacy is an intentional tort and it was undisputed that the information here became accessible on the Internet due to negligence. Plaintiff contended that "invasion of privacy may be established without regard for whether the disclosure of information was intentionally done." The court found it "notable that the public disclosure of private facts has been discussed by the Michigan Supreme Court as an intentional tort." Further, it was not aware of - nor had plaintiff presented - "any case in Michigan where an invasion of privacy proceeded on the basis of negligent disclosure. The conduct involved has instead been the intentional disclosure of private facts." In light of the fact that "no Michigan authority discusses a cause of action for invasion of privacy premised on negligent conduct, the logical conclusion is that such a cause of action does not exist in Michigan." As to the breach of contract and negligence claims, plaintiff failed to show that "the costs for the credit monitoring services relate to a present, actual injury." She conceded that she had "no evidence her information was viewed by anyone on the Internet or used for an improper purpose such as identity theft. Absent some such indication of present injury to her credit or identity," these damages "were incurred in 'anticipation of possible future injury'" and were not cognizable under Michigan's negligence law. Further, assuming that she could seek breach of contract damages, her claims for credit monitoring services were speculative. Reversed and remanded for entry of summary disposition for the defendants.


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