Zieve v. Hairston

598 S.E.2d 25 (2004)

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Nature of the Case

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Facts

P sought treatment for baldness from Ds, specifically, surgery to transplant small amounts of his own hair follicles over time. It was performed gradually so it would not be noticeable. D had three surgeries in 1996, one in 1997, one in 1998, and two in 1999. D wore a hat as a MARTA bus driver so that no one at work would notice the changes to his hairline. He told no one other than his wife and children about the hair transplants. He told none of his friends and 'wore a hat constantly' so that no one would notice. D kept the surgeries a secret. Every time P went to get a transplant, D would ask if he could use his before and after pictures, which P initially refused. P eventually agreed to allow Ds to use his photographs on a limited basis in exchange for three free surgeries. The before and after photographs taken by his doctor could be viewed in the clinic. P refused to allow the pictures to be placed in any brochures, as such brochures could be removed from the clinic and passed on to others. They also entered into a written agreement to use the photographs in a television advertisement in exchange for three more free surgeries. P restricted the use of his pictures to 500 miles outside the State of Georgia. P learned that his photographs were used on a local Atlanta television station when someone called to tell him. P immediately asked D to stop the commercials. D told him the television station made a mistake, that he would have them removed, and not to worry. They continued to run despite the assurances of D. Co-workers teased him and gave him the nickname 'HRS man.' Distressed, P took a week off from work without pay. P was given an opportunity to choose another work location, and he chose to do so even though it was a longer commute. Even after the ads stopped people still asked him about it and talked about it. P sued D. P claimed that contrary to their agreement with him, Ds aired television commercials that contained before and after pictures of P's hair replacement treatments. P's suit against Ds asserted several theories of recovery in tort, as well as breach of contract. After a summary judgment ruling, the claims to be tried by a jury included P's invasion of privacy claims that were based on (1) public disclosure of embarrassing facts about P and (2) appropriation of P's name or likeness for Ds' advantage, and P's fraud claim that was based upon Ds representations in two telephone conversations, in which D falsely claimed the television station no longer had the videotape of the advertisement. P's breach of written contract, invasion of privacy, and fraud claims (and corresponding claims for attorney fees and punitive damages) were submitted to the jury. The jury awarded $250,000 in compensatory damages, $15,000 attorney fees, and $100,000 in punitive damages. P and D appealed.