a copy of Plaintiff's hotel receipt to members of the press. Indeed, Plaintiff's lawyer has conceded as much, stating that: "Grunseth will be completely unable to adduce or examine evidence regarding the issue of the Tribune's alleged procurement of Grunseth's hotel records and receipts reflecting his stay at the J.W. Marriott Hotel in Washington, D.C. on or about July 12, 1989." Affidavit of Jerome S. Rice, Attached to Plaintiff's Opposition, P 4.
B. Plaintiff's Claim for Breach of an Implied Contract
In his first cause of action, Plaintiff asserts that he entered into an implied contract with Defendant in which Defendant promised not to disclose any information to third parties without the express written consent of Plaintiff. Complaint, PP 29-30. Under District of Columbia law, in the absence of an express contract, a court may imply a contract from the course of the parties' conduct. See Equity Group, LTD v. Painewebber, Inc., 839 F. Supp. 930, 933 (D.D.C. 1993), citing Richardson v. J.C. Flood Co., 190 A.2d 259, 261 (D.C. 1963).
While an implied contract arises from the facts and circumstances of the case and from the conduct of the parties,
and may also be inferred from the actions of the parties,
Plaintiff still retains the burden of proving each of the essential elements of his action for breach of an implied contract.
There is no evidence in this record to prove the existence of such an implied contract. Plaintiff never made nondisclosure of his hotel receipts a condition of his stay at the Marriott hotel. Plaintiff stayed at the Marriott because it was Ecolab's largest customer. Deposition of Jon Rieder Grunseth at 50-51 ("Grunseth Deposition").
Plaintiff argues that in the past when he had requested billing information or receipts, he was informed by the Defendant that it was the Defendant's policy to require a written request from the guest prior to furnishing such records. Plaintiff's Opposition at 9. Plaintiff seeks to imply the existence of an implied contract based on the mere fact that the parties had a previous course of dealing. Notwithstanding this history, no reasonable person could find that such practice manifested an intent by either party to be bound or to provide Plaintiff with a contractual right. See Equity Group, 839 F. Supp. at 934. The fact that Defendant's legal manual states that information about the registration of guests shall be kept confidential, (see Marriott Corporation Legal Manual for Hotel Management, attached as Exhibit 16 of Plaintiff's Opposition), does not establish any agreement between the parties; there is not even a suggestion that Plaintiff was aware of the legal manual or its contents.
There is simply no evidence in the record on which to base a conclusion that Plaintiff and Defendant had a mutual, unwritten agreement
that Plaintiff's stay was conditioned on non-disclosure of his hotel receipt. Accordingly, the Court must grant summary judgment for Defendant on Count I of the complaint.
C. Plaintiff's Claim for Negligence
In his second cause of action, Plaintiff asserts that Defendant negligently conveyed his hotel receipt to reporter McEnroe. Complaint, P 41. To prove negligence Plaintiff must establish: 1) a duty; 2) breach of that duty; and 3) injury proximately caused by that breach. See Williams v. Baker, 572 A.2d 1062 (D.C. 1990). Plaintiff has provided no case law establishing that a hotel has a duty to maintain the confidentiality of a customer's hotel receipt.
Nor can the fact that Marriott voluntarily followed its policy of confidentiality create such a duty. See Gerace v. Liberty Mutual Ins. Co., 264 F. Supp. 95, 97 (D.D.C. 1966) (one who performs a voluntary act only incurs a legal obligation to perform if the act was undertaken for the benefit of a third person).
Finally, Plaintiff cannot show, even if Defendant's employee did disclose his hotel receipt to reporter McEnroe,
that his firing from Ecolab was a natural and probable consequence of Defendant's wrongful conduct which ought to have been foreseen. See Ceco Corporation v. Coleman, 441 A.2d 940, 944 (D.C. 1982) (quoting Spar v. Obwoya, 369 A.2d 173, 178 (D.C. 1977). Nothing in the receipt caused publication of the Tamara Taylor story since it corroborated only one thing--namely, the date of Plaintiff's stay at the Marriott Hotel--which he does not deny. Grunseth's Deposition at 233-234. Nor is there evidence that the receipt was the cause of Plaintiff's firing. According to Pierson Grieve, Ecolab's Chairman of the Board, the "two most salient reasons" for Plaintiff's termination was his election-eve television interview and the Himle Homer report. See Deposition of Pierson M. Grieve at 22.
No reasonable fact-finder could conclude that the loss of Plaintiff's job was a foreseeable and natural and probable consequence of disclosing a hotel receipt which reflected only his stay at the Marriott on the night of July 12, 1989.
Accordingly, since Plaintiff cannot, as a matter of law, establish any of the essential elements of a claim for negligence, the Court must grant summary judgment for Defendant on Count II of the Complaint.
D. Plaintiff's Claim for Invasion of Privacy
Plaintiff's third cause of action maintains that Defendant's disclosure of his hotel receipt was a wrongful intrusion into his private life. Complaint, P 47. The tort of invasion of privacy is recognized in the District of Columbia. See Afro-American Publishing Co. v. Jaffe, 125 U.S. App. D.C. 70, 366 F.2d 649, 653 (D.C. Cir. 1966) (en banc). Plaintiff may maintain an invasion of privacy cause of action on any of four theories: 1) intrusion upon one's physical solitude or seclusion; 2) public disclosure of private facts; 3) publicity that places someone in a false light in the public eye; and 4) appropriation of the name or likeness for another's benefit, See Vassiliades v. Garfinckel's, Brooks Bros., 492 A.2d 580, 586 (D.C. 1985). In this case, Plaintiff alleges public disclosure of private facts.
There is a one-year statute of limitations applicable for libel, slander, assault, and other similar intentional torts. See D.C. Code § 12-301(4).
This limitation has been applied to invasion of privacy claims in the District of Columbia on the rationale that invasion of privacy is essentially a type of defamation. See Doe v. Southeastern University, 732 F. Supp. 7, 8 (D.D.C. 1990), appeal dismissed, 288 U.S. App. D.C. 402, 927 F.2d 1257 (D.C. Cir. 1991).
The incident about which Plaintiff complains occurred, according to Plaintiff's Complaint, in October of 1990. See Complaint, PP 13-14. Plaintiff filed his Complaint on May 13, 1993, almost three years after the alleged disclosure of his hotel receipt by a hotel employee to the reporter McEnroe. Defendant correctly argues that even if the statute of limitations did not begin to run in October of 1990, it certainly began to run on March 12, 1992, when Plaintiff wrote the Marriott to inquire about whether confidential information had been disclosed. Plaintiff wrote this letter after the article in The Quill which reported that Mr. McEnroe had "sweet-talked" a Marriott employee into sending him the hotel receipt. See Complaint, P 23. Plaintiff concedes he was aware of the alleged disclosure of his hotel receipt by March, 1992.
Consequently, even under this analysis, the statute of limitations expired in March, 1993, approximately two months before the filing of this lawsuit. Therefore, summary judgment must be granted for the Defendant on Count II since it is barred by the statute of limitations.
Plaintiff argues that his claim for invasion of privacy falls within the three year limitations period of D.C. Code § 12-301(8)
rather than the one year limitations period of § 12-301(4). Section 12-301(8) only applies to those acts for which a limitation is not otherwise specifically prescribed. Contrary to Plaintiff's contention, invasion of privacy is an action where a limitation is prescribed. Plaintiff does not argue that this action is anything other than defamatory in nature; therefore, he cannot evade the statute of limitations applicable to such actions.
Furthermore, in order for Plaintiff to make a successful claim for invasion of privacy based on publication of private facts he must establish: 1) publicity; 2) absent waiver or privilege; 3) given to private facts; 4) in which the public has no legitimate concern; and 5) which would be highly offensive to a reasonable person of ordinary sensibilities. See Wolf v. Regardie, 553 A.2d 1213, 1220 (D.C. [1989)].
Plaintiff must prove all of these elements for a claim of public disclosure of private facts.
Essential elements of that tort are lacking in this case. Plaintiff cannot show that what was allegedly disclosed constituted "private facts," since the hotel receipt contained no such "private facts" about the Plaintiff, and certainly none which would be highly offensive to a reasonable person. The receipt merely contained typical room charges, room service charges and phone charges, and absolutely no information about either Ms. Taylor or that she had stayed with him overnight. See Hotel Guest Folio, attached as Exhibit 5 to Defendant's Motion ("Hotel Guest Folio"). Plaintiff has admitted that the hotel receipt corroborates none of the facts alleged by Ms. Taylor. See Grunseth Deposition at pp. 233-234. The only facts the hotel receipt can be said to show are that Plaintiff arrived at the J.W. Marriott on July 12, 1989,
departed on July 13, 1989, made three long distance and four local calls (with no indication of to whom), placed a modestly priced order with room service, ordered a movie, and made a purchase from the refreshment center. See, Hotel Guest Folio. These hardly constitute facts which would be highly offensive to a reasonable person of ordinary sensibilities.
In short, the Plaintiff has failed to establish, as a matter of law, all essential elements of his claim for invasion of privacy: he has no evidence that the Defendant "published" the information in question
, and cannot show that the facts set forth in the receipt were "private facts" or that they would be highly offensive to a person of ordinary sensibilities.
Therefore, summary judgment must be granted in favor of Defendant on Count III.
This is a case in which a public figure who was forced out of a gubernatorial race because of sensational and damaging news stories about his sex life now sues a hotel where one of the sexual encounters allegedly took place for breach of an implied contract, negligence, and invasion of privacy. The Court has carefully examined all the citations to the record offered by Plaintiff and has concluded that there is not a shred of evidence in that record to support his claim that Defendant was responsible for giving a copy of his hotel receipt to a reporter for the Minneapolis Star & Tribune.19 Proving the existence of this fact is, as Plaintiff has acknowledged, central to his claims. He cannot prove it. For that reason, and those set forth above, the Defendant's Motion for Summary Judgment is granted.
An appropriate Order accompanies this Opinion.
U.S. District Judge
Jan. 19, 1995
WHEREFORE, it is this 19th day of January, 1995, hereby
ORDERED that Defendant's Motion for Summary Judgment is granted; and it is further
ORDERED that this case is dismissed.
U.S. District Judge