STATE OF WISCONSIN

COURT OF APPEALS
DISTRICT IV

STEFANIE SMITH,
Plaintiff-Appellant,

v. Case No. 2022-AP-001218

YVONNE SIMMONS,
Defendant-Appellee

On Appeal From The Circuit Court for Dane County,

The Honorable Judge William McCaslin Presiding

BRIEF OF PLAINTIFF-APPELLANT, STEFANIE SMITH

Name: ______314159_____
FOX & FERNÁNDEZ LLP
Attorney for the
Plaintiff-Appellant, Stefanie Smith
State Bar No.: 1234567

12 E. Mifflin Street, Suite 975

Madison, WI 53703
P: (608) 251-4800
E: associate@foxfernandezlaw.com
 TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................ i

TABLE OF AUTHORITIES .......................................................................... ii
STATEMENT OF ISSUES ............................................................................ 1
STATEMENT OF THE CASE ....................................................................... 1
SUMMARY OF THE ARGUMENT ................................................................ 3
ARGUMENT ............................................................................................... 4
I. The District Court erred as a matter of law in finding that Simmons's
disclosure of Smith's private information did not constitute invasion of
privacy. ................................................................................................... 5
a. A special relationship existed between Smith and the “public.” ........... 5
b. Because a special relationship existed, a small group was sufficient to
constitute the “public” and thus a “public disclosure.” .............................. 5
c. The public disclosure revealed embarrassing private facts about Smith,
constituting a specific category of invasion of privacy. ............................. 8
d. A rational jury could find that Simmons’s disclosure constituted a
serious invasion of privacy. .................................................................... 9
II. The District Court erred as a matter of law in finding that Simmons's
disclosure of Smith's private information was protected by the “common
interest” privilege. .................................................................................. 10
a. Simmons forfeited her conditional privilege by exhibiting reckless
disregard. ............................................................................................ 10
b. Not all recipients of Smith’s private information shared a common
interest. .............................................................................................. 11
c. A rational jury could find that Simmons’s disclosure of Smith’s private
information was not protected by the “common interest” privilege. .......... 12
CONCLUSION .......................................................................................... 12

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 TABLE OF AUTHORITIES

Cases

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).…………………………...........................4

Beaumont v. Brown, 237 N.W.2d 501 (Mich. App. 1975), rev'd, 257 N.W.2d 522 (Mich. 1977).8

Browning v. AT&T Corp., 682 F. Supp. 2d 832 (N.D. Ill. 2009)…………………………………5

Chisholm v. Foothill Capital Corp., 3 F. Supp. 2d 925 (N.D. Ill. 1998)………………………….6

Johnson v. Rogers Mem’l Hosp., Inc., 2005 WI 114, 283 Wis. 2d 384, 700 N.W.2d 27…………4

Keller v. Patterson, 2012 WI App 78, 343 Wis. 2d 569, 819 N.W.2d 841..……………………...5

Ladd v. Uecker, 2010 WI App 28, 323 Wis. 2d 798, 780 N.W.2d 216…………………………...8

Miller v. Motorola, Inc., 560 N.E.2d 900 (Ill. App. 1st Dist. 1990)………………………………….6

Pachowitz v. Ledoux, 2003 WI App 120, 265 Wis. 2d 631, 666 N.W.2d 88……………………..6

Ranous v. Hughes, 30 Wis. 2d 452, 141 N.W.2d 251 (1966)……………………………………11

Scoll & Remeika, LLC v. Fueger, No. 2021AP772, 2022 WL 1041290 (Wis. Ct. App. Apr. 7,

2022)……………………………………………………………………………………………..10

Thomas v. Tice, 943 F.3d 145 (3d Cir. 2019)……………………………………………....……..4

Zinda v. Louisiana Pac. Corp., 149 Wis. 2d 913, 440 N.W.2d 548 (1989)……………………..11

Other Authorities

Restatement (Second) of Torts § 596 (1965). ……………………………………………………10

Richard Kaye, Invasion of Privacy by Public Disclosure of Private Facts. 103 Am. Jur. Proof of
Facts 3d 159 (2008)……………………………………………………………………………….6

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 STATEMENT OF ISSUES

Issue 1: Under Wisconsin’s privacy laws, did the District Court err as a matter of law in finding

that Simmons's disclosure did not constitute invasion of privacy, when she intentionally exposed

Smith’s private tattoo denoting a prior gang affiliation to individuals who had a special

relationship with Smith, which revealed embarrassing private facts about Smith to the public,

caused termination of her employment, and impeded her ability to obtain further employment?

Issue 2: Under Wisconsin’s privacy laws, did the District Court err as a matter of law in finding

that Simmons's disclosure was protected by the “common interest” privilege because those

individuals shared a legitimate common interest in protecting their personal safety and property,

when Simmons acted with reckless disregard as to the falsity of her disclosure and not all

recipients of the information shared a legitimate common interest with her?

STATEMENT OF THE CASE

Plaintiff Stefanie Smith (“Smith”) is a resident of Sun Prairie, Dane County, Wisconsin.

R. at 1. Defendant Yvonne Simmons (“Simmons”) is Smith’s neighbor; her house is on the other

side of the street, several houses down. R. at 29. Smith and Simmons have been neighbors since

November 2019. R. at 1. Smith and Simmons were casually acquainted with one another and

remained cordial; however, Smith had “never really gotten to know her” prior to the events of

the present case. R. at 12.

On June 6, 2021, Smith was involved in a bicycle accident directly in front of Simmons’

house. R. at 1. Smith was traveling at a high speed when she “completely lost control, skidded

into the curb, flipped off the bike and landed in the street.” R. at 21. At that moment, Simmons

was out gardening in her front yard and witnessed the accident. R. at 31. Smith fell unconscious

and her bra was partially displaced for a short period of time, exposing her right breast and a

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private tattoo denoting the numbers, “3:18.” R. at 14. “3:18” is a symbol of the 3:18 Gang,

known colloquially as “Three Eighteen,” which is a Milwaukee-based gang known for drug

activity, robberies, and home invasions. R. at 16. Despite having the tattoo, Smith never

participated in any criminal activity as part of, or on behalf of, the 3:18 Gang. R. at 17. Though

Smith had considered getting the tattoo removed, she maintained it as a reminder of her willful,

purposeful, and virtuous detachment from the gang and her substantial progress as a “mature,

productive, and responsible citizen.” R. at 25.

Upon seeing Smith partially exposed, Simmons attempted to readjust Smith’s bra to

preserve her modesty and while doing so, observed the tattoo. R. at 31. That evening, Simmons

researched information online regarding the numbers, “3:18”, and without further deliberation or

inquiry, assumed that Smith was affiliated with the gang, although Simmons had “no other

reason to believe that Smith was a dangerous person.” R. at 32-33. Simmons was concerned for

the safety of several elderly, vulnerable widows who lived in the neighborhood. Id. Simmons

then intentionally disclosed the presence of Smith’s tattoo, which was utterly confidential and

private information, to three individuals at her monthly Bridge Club meeting, one of whom was

not Smith’s neighbor and bore no affiliation to Smith in any way. R. at 34. Simmons, without

thought of the ramifications of her actions, also revealed Smith’s private information to the aunt

of Smith’s boss at EverTrust Bank, where Smith was employed. R. at 13.

As a direct result of the disclosure, Smith lost her job at EverTrust Bank. R. at 24. This

was a devastating loss for Smith since the “job paid really well and [it] had a lot of promotion

potential.” Id. She had worked at the bank as a teller since January 2020 and had done

exceptionally well with no disciplinary or performance issues. R. at 22. Professionally, Smith

was further crippled because her former boss now thought she was a “gangster” and would not

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provide a professional reference so that Smith could obtain another job. R. at 24. Overall,

Smith’s reputation in the entire Sun Prairie community was “irreparably damaged” because of

Simmons’s public disclosure of Smith’s private information. R. at 2.

Smith filed suit under Wisconsin’s privacy laws, alleging that, as a direct result of

Simmons’s public disclosure, she suffered “financial, reputational, and emotional injury.” R. at

2. The District Court granted Simmons’s motion for summary judgment, finding that Simmons’s

conduct did not constitute “public disclosure” of private facts; there was no “special

relationship” between Smith and the public to whom the information was disclosed; and even if

the disclosure was public and “otherwise actionable under Wisconsin’s privacy laws”, it was

protected by the “common interest” privilege because the recipients shared a “legitimate

common interest in protecting their personal safety and property.” R. at 43-46. Plaintiff Smith

now appeals this verdict.

SUMMARY OF THE ARGUMENT

The District Court erred as a matter of law in finding that Simmons's conduct did not

constitute invasion of privacy. The District Court improperly based this finding on the erroneous

conclusion that the “public disclosure” element of an invasion of privacy claim was not met

because Simmons disclosed the private information to a select few individuals with no “special

relationship” to Smith. In actuality, two of the three recipients of the disclosed information were

Smith’s neighbors; thus, there was a “special relationship.” As a result, those individuals may

constitute the “public” and this was indeed a “public disclosure.” Furthermore, the District Court

neglected to consider that this public disclosure revealed embarrassing private facts about Smith,

which qualifies as one formally recognized form of invasion of privacy.

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 The District Court also erred as a matter of law in finding that Simmons's disclosure of

Smith's private information was protected by the "common interest" privilege. The District Court

improperly based this finding on the assertion that Smith’s neighbors shared a common interest

in personal safety and property protection, which would legally protect Simmons’s disclosure.

However, the District Court neglected to consider that the common interest privilege may be

abused and forfeited in certain circumstances. Here, Simmons exhibited a reckless disregard as

to the falsity of the private information and not all recipients of the disclosure shared a common

interest in personal safety and property protection. Thus, Simmons forfeited her common interest

privilege and an invasion of privacy claim against her should be legitimately considered.

The District Court’s grant of summary judgment in favor of Simmons was therefore

improper and should be reversed and remanded with instructions to proceed to a jury trial.

ARGUMENT

A court should only grant a motion for summary judgment when the “pleadings,

depositions, answers to interrogatories, and admissions on file, together with affidavits,” show

that there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law. Johnson v. Rogers Mem’l Hosp., Inc., 2005 WI 114, ¶ 30, 283 Wis.

2d 384, 700 N.W.2d 27. A dispute is genuine if a reasonable trier-of-fact could find in favor of

the non-movant and it is material if it could affect the outcome of the case. Thomas v. Tice, 943

F.3d 145, 149 (3d Cir. 2019). All justifiable inferences are drawn in the favor of the non-movant.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Summary judgment is appropriate only if

the non-movant “fails to make a showing sufficient to establish the existence of an element

essential to that party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 318 (1986).

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 I. The District Court erred as a matter of law in finding that Simmons's disclosure of
Smith's private information did not constitute invasion of privacy.

The decision to grant summary judgment on invasion of privacy is a matter of law which

is reviewed de novo. Keller v. Patterson, 2012 WI App 78, 343 Wis. 2d 569, 819 N.W.2d 841.

a. A special relationship existed between Smith and the “public.”

The District Court erred in finding that no “special relationship” existed between Smith

and those to whom her private facts were disclosed. Any interpersonal relationship with the party

to whom the offensive information is disclosed may constitute a “special relationship.” Browning

v. AT&T Corp., 682 F. Supp. 2d 832 (N.D. Ill. 2009). These interpersonal relationships may

include that of “coworkers, club or church members, family, or neighbors.” Id at 841.

Importantly, Illinois courts have stated clearly that this list is not exhaustive. Id.

Here, Simmons disclosed Smith’s private information to three people, two of whom

“lived on the same street and/or in the same community [as Smith].” R. at 42. Thus, these

individuals, Ms. Murray and Ms. Peterson, were Smith’s neighbors. Both “knew who [Smith]

was” and Smith shared an interpersonal relationship with at least one of them, Ms. Murray, as

evidenced by Simmons’ testimony that Ms. Murray “always seemed to know everyone and

everything that is going on in the neighborhood.” R. at 35. Their status as neighbors and the

existence of at least one substantive interpersonal relationship is sufficient to constitute a

“special relationship.” Thus, the District Court erred in finding that no “special relationship”

existed between Smith and her neighbors who became aware of her private information.

b. Because a special relationship existed, a small group was sufficient to

constitute the “public” and thus a “public disclosure.”

The District Court erred in finding that the “small, select group comprised of three

people,” to whom Smith’s private information was disclosed, did not constitute the “public” and

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as a result, there was no “public disclosure.” R. at 43. Because a “special relationship” existed

between Smith and Simmons’ neighbors, several individuals may be categorized as the “public.”

The publication of private facts doctrine typically applies to communications made to the

public at large, rather than a few individuals. Richard Kaye, Invasion of Privacy by Public

Disclosure of Private Facts. 103 Am. Jur. Proof of Facts 3d 159 (2008). The “public” may be the

general public, if the person were a recognized public figure, or a “particular public such as

fellow employees, club members, church members, family, or neighbors, if the person were not a

public figure.” Miller v. Motorola, Inc., 560 N.E.2d 900, 981 (Ill. App. 1st Dist. 1990). However,

in circumstances where a “special relationship” exists between the plaintiff and the “public” to

whom the private information is disclosed, the disclosure “may be just as devastating to the

person even though the disclosure was made to a limited number of people.” Id at 980.

Therefore, if a plaintiff has a “special relationship” with the individuals to whom the matter was

disclosed, the publicity requirement of public disclosure may be satisfied by disclosure to a small

number of people. Chisholm v. Foothill Capital Corp., 3 F. Supp. 2d 925 (N.D. Ill. 1998).

In fact, the Wisconsin Court of Appeals noted that disclosure to even one person may be

sufficient to constitute “publicity”; what is truly important is the “character and nature of the one

person to whom the offending information was communicated.” Pachowitz v. Ledoux, 2003 WI

App 120, ¶ 21, 265 Wis. 2d 631, 666 N.W.2d 88. In Pachowitz, the plaintiff, who was provided

medical attention by an emergency medical technician (EMT), filed an invasion of privacy claim

against the EMT, alleging that the EMT wrongfully disclosed her protected health information to

the plaintiff’s co-worker, Sally Slocomb. The Court found that, although the disclosure was

made to only one individual – Slocomb - it was still sufficient to satisfy the publicity element of

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invasion of privacy, because Slocomb’s “character and nature” was that of “the biggest gossip,”

heightening the possibility that she would share the information with others. Id at 645.

Of note, the “special relationship” exception has been limited; specifically, the First

District found that disclosure of private information to persons, even in a special relationship,

does not satisfy the publicity requirement if those individuals had a “natural and proper interest”

in the disclosure. Roehrborn v. Lambert, 660 N.E.2d 180, 185 (Ill. App. 1st Dist. 1995.

Here, information regarding Smith’s 3:18 Gang tattoo was disclosed to three elderly

women at a Bridge Club meeting, two of whom are Smith’s neighbors. R. at 34. Since Smith is

not considered a public figure, her neighbors, to whom her private information was disclosed,

bear a “special relationship” with her, and thus may constitute a “particular public,” satisfying

the publicity requirement of the publication of private facts doctrine. Moreover, one of the

individuals to whom the information was disclosed, Ms. Murray, was known as a “busybody,”

just like the characterization of Slocomb in Pachowitz; thus, Ms. Murray’s proclivity toward

gossip further substantiates the argument for satisfying the publicity element of invasion of

privacy. R. at 35.

Finally, the Roehrborn Court’s limitation of the “special relationship” exception does not

apply here; although two of the three individuals to whom the private information was disclosed

had a shared common interest in personal safety and property protection because they were

Smith’s neighbors, the third individual did not live on Smith’s street, bore no relation to Smith,

and did not share a “natural and proper interest” in the disclosure. Roehrborn 660 N.E.2d at 185.

Therefore, because a special relationship existed between Ms. Smith and those neighbors, and

the Roehrborn limitation does not apply, two individuals was sufficient to qualify as the “public”

and thus, the “public disclosure” element of an invasion of privacy claim is satisfied.

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 c. The public disclosure revealed embarrassing private facts about Smith,
constituting a specific category of invasion of privacy.

The District Court failed to recognize that the public disclosure then revealed

embarrassing private facts about Ms. Smith, constituting a specific and formally recognized

category of invasion of privacy.

Invasion of privacy claims are historically recognized as necessary to protect “a right of

highest importance.” Beaumont v. Brown, 237 N.W.2d 501, 505, (Mich. App. 1975), rev'd, 257

N.W.2d 522 (Mich. 1977). Four types of invasion of privacy exist: “(1) intrusion upon the

plaintiff’s seclusion or solitude; (2) public disclosure of embarrassing private facts about the

plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4)

appropriation, for the defendant's advantage, of the plaintiff's name or likeness.” Id at 506.

Furthermore, in Wisconsin, “invasion of privacy” is defined as “giving publicity to a person’s

private matters of a kind highly offensive to a reasonable person.” Ladd v. Uecker, 2010 WI App

28, 323 Wis. 2d 798, 780 N.W.2d 216. While communication of private facts to a public not

concerned with that individual is not a “serious interference” with plaintiff’s right to privacy, if

private facts are exposed to a public whose “knowledge of those facts would be embarrassing to

the plaintiff,” this is sufficient to qualify as invasion of privacy. Id.

In Beaumont, the plaintiff, a labor safety supervisor for the Michigan Department of

Labor, alleged invasion of privacy when the defendant, the director of the Department of Labor,

shared dissatisfactory employment performance and adverse health information that was then

made public by the Civil Service Commission. Beaumont 237 N.W.2d at 504. The Court found

that disclosure of the plaintiff’s poor performance reviews and feeble health condition were

unnecessary to the defendant’s ultimate purpose of “verifying the plaintiff’s military duties” with

the U.S. Army Reserve Components Personnel and Administration Center and furthermore, that

8
it qualified as the second type of invasion of privacy (i.e. the disclosure was embarrassing to the

plaintiff). Id. The Court did not find, however, that this disclosure placed the plaintiff in a false

light, since the disparaging comments were in fact accurate. Id.

The present case mirrors Beaumont in that Simmons’s disclosure of Smith’s private facts

embarrassed Smith because it revealed information that Smith was uncomfortable sharing with

the public, and as a result, “[her] neighbors wouldn’t look her in the eye” and if they saw her,

“she would notice them quickly run inside.” R. at 24-25. Moreover, disclosure of Smith’s private

tattoo qualifies as “giving publicity to a person’s private matters,” and since the tattoo represents

a notorious street gang engaged in “drugs, robberies, and home invasions,” this would likely be

offensive to a reasonable person, satisfying the language of Wisconsin law. R. at 32. Hence, the

District Court erred in failing to recognize that Simmons’s exposure of Smith’s tattoo

represented a public disclosure of embarrassing private facts, qualifying as one of the formally

recognized categories of invasion of privacy.

d. A rational jury could find that Simmons’s disclosure constituted a serious

invasion of privacy.

A rational jury, considering all the applicable law and the facts in the light most favorable

to Smith, could conclude that Simmons’s disclosure of Smith’s private information met the

elements required for an invasion of privacy claim. Smith had a “special relationship” with her

neighbors; because there was a “special relationship,” the disclosure satisfied the “public

disclosure” element despite only being made to several individuals; and the public disclosure

then qualified as one formally recognized category of invasion of privacy because it revealed to

the public embarrassing private facts about Smith. Thus, the District Court erred as a matter of

law in finding that Simmons’s disclosure did not constitute invasion of privacy.

9
 II. The District Court erred as a matter of law in finding that Simmons's disclosure of
Smith's private information was protected by the “common interest” privilege.

The decision to grant summary judgment on the issue of the “common interest” privilege

is a matter of law which is reviewed de novo. Scoll & Remeika, LLC v. Fueger, No. 2021AP772,

2022 WL 1041290, at *3 (Wis. Ct. App. Apr. 7, 2022).

a. Simmons forfeited her conditional privilege by exhibiting reckless disregard.

Simmons exhibited a reckless disregard as to the falsity of the defamatory matter,

forfeiting her common interest privilege (also known as “conditional privilege”). Public

disclosure of confidential information is protected by conditional privilege if the “circumstances

lead a person to reasonably believe that there is information that another person sharing a

common interest is entitled to know.” Restatement (Second) of Torts § 596 (1965). The privilege

is further extended to “partners, fellow officers of a corporation for profit, fellow shareholders,

and fellow servants…” See Id. The motivation behind this policy is to encourage dissemination

of information to those who would benefit from it because of a shared “property, business, or

professional” interest. Zinda v. Louisiana Pac. Corp., 149 Wis. 2d 913, 925, 440 N.W.2d 548

(1989). However, conditional privilege is not absolute. Ranous v. Hughes, 30 Wis. 2d 452, 141

N.W.2d 251 (1966). Notably, the privilege may be forfeited if the defendant demonstrates a

reckless disregard as to the falsity of the defamatory matter. Zinda,149 Wis. 2d at 925.

Here, although Simmons conducted personal research about the 3:18 Gang and the tattoo,

determining that the “gang tattoo [she] found online was the same tattoo [she] had seen on

Smith,” Simmons did not carry out reasonable efforts to confirm the veracity of her damning

allegations. R. at 36. Simmons “thought it was important to tell [her] neighbors that someone

with a gang affiliation was living on [their] street”; however, she did not seek to determine, by

asking Smith or otherwise, whether Smith was still affiliated with the 3:18 Gang or if she had

10
ever directly participated in illegal activities. Id. In fact, Simmons admitted that Smith “had been

a fine neighbor” and had never “threatened, frightened, or intimidated” her, and that she “just got

scared.” R. at 30. Ultimately, the community “put the pieces together” and assumed that Smith

was an active “gangster” who could bring other gangsters and “target them for a break-in.” R.

32. However, in reality, Smith was no longer involved with the gang whatsoever; she “hadn’t

done anything or been in touch with anyone from 3:18 for years.” R. at 20. Thus, Simmons’s ill-

founded fear, rather than rational, reasonable, and fair inquiry into the matter, propelled her to

disclose unverified information which was then construed in a manner harmful to Smith and used

to make inaccurate and damaging assumptions. Thus, Simmons abused her conditional privilege

by exhibiting a reckless disregard as to the falsity of her disclosure.

b. Not all recipients of Smith’s private information shared a common interest.

Simmons also forfeited her conditional privilege because not all recipients to whom she

divulged Smith’s private information shared a common interest in personal safety and property

protection. Conditional privilege may be abused if the disclosure of private information is “made

to some person not reasonably believed to be necessary for the accomplishment of the purpose of

the particular privilege.” Zinda, 149 Wis. 2d at 925.

In Zinda, a discharged worker sued her former employer, Louisiana Pacific, for

disclosing the justification behind her termination to other employees within the company in the

form of a newsletter. The Court found that the employer had not abused its conditional privilege

because it had purposefully and selectively disclosed the information to only those who were

employees at the company. In fact, the company “attempted to correlate the number of copies [of

the newsletter] to the number of employees.” Zinda, 149 Wis. 2d at 927. These newsletters were

circulated only in the lunchroom, over several days, so that “every work shift would have an

11
opportunity to read the newsletter.” Id at 928. The company did not intentionally disclose the

information to individuals who did not bear a common interest in the matter.

In contrast, in the present case, Simmons revealed private information concerning Smith

to a group of her neighbors but also to Ms. Sheffley, “another lady that [didn’t even] live around

there.” R. at 13. Disclosure to Ms. Sheffley represents an abuse of conditional privilege because

she did not live near Smith and thus did not bear a common interest in personal safety and

property protection. In fact, she not only did not bear a common interest but she was also the

aunt of Smith’s boss, resulting in swift and unjust termination of Smith’s employment. While the

company in Zinda carefully disclosed the information only to employees, Simmons carelessly

disclosed Smith’s private information to an individual who did not have a “direct and legitimate

interest” in the information. Zinda, 149 Wis. 2d at 927. Thus, Simmons forfeited her conditional

privilege by being careless and indiscriminate in her disclosure of Smith’s private information.

c. A rational jury could find that Simmons’s disclosure of Smith’s private

information was not protected by the “common interest” privilege.

Concerning the facts in the light most favorable to Smith under all the relevant law, a

rational jury could find that Simmons forfeited her conditional privilege because she

demonstrated a reckless disregard as to the falsity of the disclosed private information and not all

recipients of Smith’s private information shared a common interest in personal safety and

property protection. Therefore, Smith not only satisfies the elements of an invasion of privacy

claim, but the “common interest” privilege is also not applicable as a bar to Smith’s recovery.

CONCLUSION

For the reasons above, the decision of the District Court should be reversed and

remanded with instructions to proceed to a jury trial.

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