Court of Appeals: Div. 1 – No New Tort of Negligent Dissemination of Harmful Information
Barbara Corey was a prosecutor with the Pierce County Prosecutor’s Office for 20 years. As a deputy, she helped organize a guild to negotiate employment conditions under a collective bargaining agreement. She was later appointed to be the third highest ranking official in the office, but was then not part of the guild, which had a “just cause” termination agreement. Her boss promised her that she would still enjoy the “just cause” termination benefits if she accepted the position. She accepted the position.
Later, Ms. Corey suggested that a fellow prosecutor, John Neeb, be transferred out of the felony division. Ms. Corey’s boss, Gerry Horne, initially approved the transfer, but later rescinded it when he discovered what the reasons where that Ms. Corey had recommended the transfer. (The opinion does not disclose what these were.) Mr. Horne then terminated Ms. Corey.
Prior to being terminated, Ms. Corey had been collecting donations to purchase a gift for the child of a colleague, who was ill. Mr. Horne found the money in Ms. Corey’s desk drawer after he terminated her and suspected that she had taken some of the donations. Mr. Horne’s own investigator, however, found no evidence that Ms. Corey had taken anything.
Ms. Corey claimed that someone in Mr. Horne’s office leaked to the Tacoma New Tribune that she was being subjected to a criminal investigation. Other stories also appeared in the paper that had disparaging things to say about Ms. Corey and which Ms. Corey claimed were untrue. Ms. Corey was devastated and humiliated. She sued Pierce County for invasion of privacy, defamation, defamation by implication, false light, outrage, negligent dissemination of unsubstantiated harmful information and breach of a contract formed by promissory estoppel.
The trial court allowed the jury to consider each of these bases for relief, including the previously unannounced tort of negligent dissemination of harmful (unsubstantiated) information.’
A jury found for Ms. Corey and awarded damages.
The Court of Appeals affirmed the verdict on the basis of the torts of defamation, false light, outrage and breach of the employment contract by estoppel. (The trial court determined that there was enough evidence that Mr. Horne had promised Ms. Corey that she would only be terminated for just cause.)
The Court of Appeals, however, determined that Washington does not recognize the tort of negligent dissemination of unsubstantiated information. The Court of Appeals reasoned that such information may not be subject to disclosure under the Public Records Act (PRA), but that because the PRA does not create a private cause of action, none exists.
The Court of Appeals also recognized that expert testimony with regard to prosecutorial ethics was appropriate and not an invasion of the jury’s role.
The Court of Appeals also held that it was appropriate to exclude evidence from Ms. Corey’s personal life from trial and that her request for attorneys fees was barred as untimely.
Note to appellate courts: Don’t just say that the case law doesn’t support a new tort. You make the case law. If public policy including legislative enactments indicate that certain behavior has been deemed offensive in our society, please recognize that nearly the entire body of tort law was created through the common law, which has and will continue to evolve over time. Where there is a right, there must be a remedy. Justice Marshall knew that when he stated:
“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” Marbury v. Madison, 5 U.S. 137 (1803).