Opinion
11-24-2014
IN RE: AMENDMENTS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS - CIVIL
ORDER ADOPTING SUPPLEMENTAL
OKLAHOMA UNIFORM JURY INSTRUCTIONS - CIVIL
¶1 The Court has reviewed the recommendations of the Oklahoma Supreme Court Committee for Uniform Civil Jury Instructions to adopt several new proposed jury instructions. The Court finds that the instructions should be adopted as modified by the Court.
¶2 It is therefore ordered, adjudged and decreed that the revisions to the Instructions shall be available for access via internet from the Court website at www.oscn.net and provided to West Publishing Company for publication. The Administrative Office of the Courts is requested to notify the judges of the District Courts of the supplemental instructions set forth herein. Further, the District Courts of the State of Oklahoma are directed to implement these supplemental instructions effective thirty (30) days from the date of this Order.
¶ 3 It is therefore ordered, adjudged and decreed that the adoption of proposed new Instructions, as set out and attached to this Order, are hereby adopted: Instruction Nos. 1, 28.11, 28.12, 28.13, 28.14, 28.15, 28.16, 30.1, 30.2, 30.3, 30.4.
¶ 4 The Court also accepts and authorizes the updated Committee's comments, as modified by the Court, to be published, together with the above-referenced revisions and each amended page in the revisions to be noted at the bottom thereof as follows (Nov. 2014 Supp.).
¶ 5 As it did so previously, the Court today declines to relinquish its constitutional or statutory authority to review the legal correctness of these authorized Instructions when it is called upon to afford corrective relief in any adjudicative context.
¶ 6 These amended Instructions shall be effective thirty (30) days from the date this Order is filed with the Clerk of this Court.
DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THE 24th DAY OF NOVEMBER, 2014.
/S/CHIEF JUSTICE
ALL JUSTICES CONCUR
Instruction No. 1.0
Use of Electronic Devices and Research Prohibited
At this time, turn off all cell phones and other electronic devices. Do not use any electronic devices while court is in session in this case.
Do not use any electronic device or media, such as the telephone, a cell or smart phone, camera, recording device, Blackberry, PDA, computer, the Internet, any Internet service, any text or instant messaging service, any Internet chat room, blog, or website such as Facebook, MySpace, YouTube, or Twitter, or any other way to find out any information about this case or the parties or attorneys.
It is very important that you abide by these instructions because it is essential that you keep your minds free and open at all times throughout this trial and that you not be influenced by anything except the evidence you hear and see in the courtroom. Failure to follow these instructions could result in the case having to be retried, and you will be in violation of your oath and the court's order, which may result in your being fined, put in jail, or both.
Notes on Use
This Instruction should be given as soon as the case is called in the presence of the jury. The trial judge may also distribute hard copies of this Instruction to the jurors.
CHAPTER TWENTY EIGHT
Defamation and Invasion of Privacy
List Of Contents
Instruction No. 28.1 Defamation - Introductory Instruction
Instruction No. 28.2 Defamation - Elements (Public Figure Plaintiff)
Instruction No. 28.3 Defamation - Elements (Private Figure Plaintiff)
Instruction No. 28.4 Defamation - Affirmative Defense of Fair Comment
Instruction No. 28.5 Defamation - Affirmative Defense of Fair Reporting
Instruction No. 28.6 Defamation - Affirmative Defense of Good Faith
Instruction No. 28.7 Defamation - Affirmative Defense for Statement Made by Another Person
Instruction No. 28.8 Defamation - Affirmative Defense of Qualified Privilege
Instruction No. 28.9 Defamation -Measure of Damages
Instruction No. 28.11 Invasion of Privacy - Introductory Instruction
Instruction No. 28.12 Invasion of Privacy - Elements (Intrusion Upon Seclusion)
Instruction No. 28.13 Invasion of Privacy - Elements (Appropriation of Right of Publicity)
Instruction No. 28.14 Invasion of Privacy - Elements (Publication of Private Facts)
Instruction No. 28.15 Invasion of Privacy - Elements (False Light)
Instruction No. 28.16 Invasion of Privacy - Measure of Damages
Instruction 28.11
Invasion of Privacy - Introductory Instruction
This is an action to recover damages for invasion of privacy. [Plaintiff] claims that [specify the facts that the plaintiff alleges constituted the invasion of privacy:e.g., [Defendant] unreasonably placed [Plaintiff] in a false light before the public]].
Notes on Use
This instruction should be used to introduce the remaining instructions on invasion of privacy in this Chapter.
Comments
In McCormack v Oklahoma Pub. Co., 1980 OK 98, ¶ 8, 613 P.2d 737, 740, the Oklahoma Supreme Court recognized the tort of invasion of privacy in the four categories set out in Restatement (Second) of Torts § 652A (1977).
Restatement (Second) of Torts § 652A (1977) provides:
(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.
(2) The right of privacy is invaded by
(a) unreasonable intrusion upon the seclusion of another, as stated in § 652B; or
(b) appropriation of the other's name or likeness, as stated in § 652C; or
(c) unreasonable publicity given to the other's private life, as stated in § 652D; or
(d) publicity that unreasonably places the other in a false light before the public, as stated in § 652E.
Both absolute and conditional privileges from the law of defamation may apply to claims for invasion of privacy that involve publication.
Restatement (Second) of Torts § 652F (1977) provides:
The rules on absolute privileges to publish defamatory matter stated in §§ 583 to 592A apply to the publication of any matter that is an invasion of privacy.
Restatement (Second) of Torts § 652G (1977) provides:
The rules on conditional privileges to publish defamatory matter stated in §§ 594 to 598A, and on the special privileges stated in §§ 611 and 612, apply to the publication of any matter that is an invasion of privacy.
Instruction 28.12
Invasion of Privacy - Elements (Intrusion Upon Seclusion)
In order to recover for invasion of privacy, [Plaintiff] has the burden of proving the following elements by the greater weight of the evidence:
1. [Defendant] intentionally intruded upon the privacy/(private affairs)/ (private concerns) of [Plaintiff];
2. Without the consent of [Plaintiff]; and
3. The intrusion was highly offensive to a reasonable person.
Comments
The Oklahoma Supreme Court stated in Gilmore v. Enogex, Inc., 1994 OK 76, ¶ 16, 878 P.2d 360, 366:
Oklahoma recognizes the common-law tort of invasion of privacy by intrusion upon one's seclusion. In order to prevail on this claim, Gilmore had to prove the two elements of that tort: (a) a nonconsensual intrusion (b) which was highly offensive to a reasonable person.
Instruction 28.13
Invasion of Privacy - Elements (Appropriation of Right of Publicity)
In order to recover for invasion of privacy, [Plaintiff] has the burden of proving the following elements by the greater weight of the evidence:
1. [Defendant] knowingly used the name/voice/signature/photograph/ likeness;
2. On/In products/merchandise/goods;
3. Without the consent of [Plaintiff].
Comments
The right of publicity is protected both by the tort of invasion of privacy recognized in McCormack v Oklahoma Pub. Co., 1980 OK 98, ¶ 3, 613 P.2d 737, 739, and 12 O.S. 2011, § 1449(A), which provides:
Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof, and any profits from the unauthorized use that are attributable to the use shall be taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney's fees and costs.
The Oklahoma Court of Civil Appeals summarized the elements of a statutory right of publicity claim in Brill v. the Walt Disney Co., 2010 OK CIV APP 132, ¶ 10, 246 P.3d 1099, 1103-04 (footnote omitted), as follows:
In order to establish a prima facie case of statutory violation of the right of publicity, a plaintiff must plead facts establishing the three elements of the claim: (1) Defendants knowingly used Brill's name or likeness, (2) on products, merchandise or goods, (3) without Brill's prior consent. Just as under the Restatement, the statute only concerns the use of another person's name, voice, signature, photograph or likeness, not the name, photograph or likeness of another person's car.
Instruction 28.14
Invasion of Privacy - Elements (Publication of Private Facts)
In order to recover for invasion of privacy, [Plaintiff] has the burden of proving the following elements by the greater weight of the evidence:
1. [Defendant] made a public statement/disclosure/announcement/ declaration;
2. Of private facts;
3. That were highly offensive to a reasonable person; and
4. Were not of legitimate concern to the public.
Comments
Restatement (Second) of Torts § 652D (1977) provides:
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, andThe Oklahoma Supreme Court specified the elements of a claim for invasion of privacy by publication of private facts in Guinn v. Church of Christ of Collinsville, 1989 OK 8, ¶ 41, 775 P.2d 766, 781, as foll
(b) is not of legitimate concern to the public.