IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MICHAEL J. SPENCE,
Individually,
Plaintiff,

v.. C.A. N15C-04-014 PRW

ACHAMMA CHERIAN, Pharm. D.,
RPH, Individually,

RITE AID OF DELAWARE, INC.,
a Delaware Corporation,

Defendants and Third-
Party Plaintiffs,

v.
DAVID SPENCE,

Third-Party
Defendant.

é\Jé\é\ié\éS\./&/L/\_/\J\J§Séé%\./

Submitted: February 24, 2016
Decided: May 20, 2016

MEMORANDUM OPINIO§ A§D ORDER

Upon Thira’-Party Defendants ’ Motz`on to Dz`smiss Defendants ’/Third-Parly
Plainz‘z`jjfv’ Third-Party Complaint,
GRANTED.

Andrew C. Dalton, Esquire, Dalton & Associates, P.A., Wilmington,
Delaware, Attorney for Third-Party Defendant.

Stephen F. Dryden, Esquire, Dryden, LLC, NeW Castle, Delaware, Attorney
for Defendants/Third-Party Plaintiffs.

WALLACE, J.

I. INTRODUCTION

Michael J. Spence is a twenty-six year-old being treated for Human
Immunodeficiency Virus ("HIV") infection. As of June 17, 2014, he had made the
difficult decision to not yet share his diagnosis with his parents; he did, however,
share the same Rite Aid Pharmacy with them.

This action arises from Rite Aid’s disclosure to Michael’s father the names
of some of Michael’s HIV medications. Michael has sued Rite Aid (and its
pharmacist - collectively "Rite Aid") for damages arising from that disclosure.
While it might seem unfathomable to those of common sensibility, Rite Aid has
now brought Michael’s father into this civil action, claiming that he is either solely
or partially liable for any damages that arose from his expressing patemal concern
for Michael once he found out about his son’s medical condition.

Before the Court is Michael’s father’s motion to dismiss Rite Aid’s third-
party complaint through which it claims he is responsible, at least in part, for any
damages it may owe his son, Michael. Because Rite Aid has failed to plead the
requisite elements for its third-party claims or those claims are otherwise without

merit, the Court GRANTS Michael’s father’s motion to dismiss.

C. RITE AID’S PLEADINGS FAIL TO DEMONSTRATE THAT, UNDER ANY
REASONABLY CONCEIVABLE SET OF CIRCUMSTANCES, MR. SPENCE
EITHER ACTED INTENTIONALLY OR RECKLESSLY, OR THAT HIS
CONDUCT WAS EXTREME AND OUTRAGEOUS.

In Delaware, the elements of the tort of intentional infliction of emotional
distress ("IIED") are defined by Section 46 of the Restatement (Second) of Torts.z$
According to the Restatement, an IIED claim arises when "[o]ne who by extreme
and outrageous conduct intentionally or recklessly causes severe emotional distress
to another is subject to liability for such emotional distress, and if bodily harm to
the other results from it, for such bodily harm."% Extreme and outrageous conduct

is that which "exceeds the bounds of decency and is regarded as intolerable in a

7

civilized community."z The Court considers the Restatement’s comment as to

what conduct might be sufficiently extreme and outrageous to warrant IIED
liability:

The cases thus far decided have found liability only
where the defendant’s conduct has been extreme and
outrageous. lt has not been enough that the defendant
has acted with an intent which is tortious or even
criminal, or that he has intended to inflict emotional
distress, or even that his conduct has been characterized
by ‘malice’ or a degree of aggravation which would

25 see Manern v. Huds@n, 532 A.zd 85, 85-86 (D@i. Super. Ct. 1987); Esp@siw v_.

Townsend, 2013 WL 493321, at *6 (Del. Super. Ct. Feb. 8, 2013).
26 Fanean v, lane Azd C@rp. @fz)ezaware, 984 A.zd 812, 318 (Dei. Super. cc. 2009).

22 Th@mas v_ fran/ord Mu¢. lns. C@_, 2004 wL 1102362, ar *3 (Dei. Super. Ct. Apr. 7,
2004y

_10_

entitle the plaintiff to punitive damages for another tort.
Liability has been found only where the conduct has been
so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a
civilized community. Generally, the case is one in which
the recitation of the facts to an average member of the
community would arouse his resentment against the
actor, and lead him to exclaim ‘Outrageous! ’28
Rite Aid, it seems, would suggest that this father’s research into Epzicom
and Tivicay, and his later talks with his wife and son about this concerning medical
information, somehow constituted intentional or reckless conduct that was extreme
and outrageous. Again, however, because of the imprecision of its third-party
complaint, Rite Aid fails to allege (either expressly or by incorporation) the
necessary element that Mr. Spence’s actions were extreme and outrageous.
Rather, more than once, Rite Aid admits that Mr. Spence’s acts were "for all
intents and purposes well meaning."” In so doing, Rite Aid admits that Mr.
Spence’s conduct was not, under any reasonably conceivable set of circumstances

susceptible of proof, "extreme and outrageous." This Court cannot find this

father’s genuine concern for his son’s health and safety so "intolerable in a

28 Farmer v. Wilson, 1992 WL 331450, at *4 (Del. Super. Ct. Sept. 29, 1992) (citing
Restatement (Second) of Torts § 46 cmt. d).

29 See, e.g., Rite Aid’s Suppl. Mem. at 7 (noting that Mr. and Mrs. Spence did "as parents
will do"); id. at ll ("one can understand the as a parent the concern underscoring the actions that

were taken by [Michael’s father]").

_11_

civilized community" as to warrant civil liability.30 No reasonable mind couldn
As such, the claim for intentional infliction of emotional distress must be

DISMISSED.

D. MR. SPENCE CANNoT BE HELD LIABLE w1TH RITE AlD FoR NEGLIGENT
INFLICTIoN oF EMOTIoNAL DISTRESS BEcAUsE HE BREACHED No DUTY

oF CARE oWED To MICHAEL.

There are three elements to the claim of negligent infliction of emotional
distress ("NIED"): (l) negligence causing fright to someone; (2) that the plaintiff
was within the "zone of danger"; and (3) that the plaintiff suffered physical harm
as a result.32 An essential element of a NIED claim is neglz'gence, which requires a
party to plead that the defendant owed, and subsequently breached, a duty to the

plaintiff.” The Court determines as a matter of law whether a party owes another a

duty.34

30 See Hunt v. State, 69 A.3d 360, 367 (Del. 2013) (quoting Restatement (Second) of Torts

§ 46(h)) ("It is for the court to determine, in the first instance, whether the defendant’s conduct
may reasonably be regarded as so extreme and outrageous as to permit recovery[.]").

31 Id. (quoting Restatement (Second) of Torts § 46(h)) ("If reasonable minds may differ, the
question of whether the conduct is extreme and outrageous is for the jury.").

32 Armstrong v. A.I. Dupom Hosp. for Children, 60 A.3d 414, 423 (Del. Super. Ct. 2012)
(citing Rhinehardt v. Bright, 2006 WL 2220972, at *5 (Del. Super. Ct. July 20, 2006)).

33 See Fritz v. Yeager, 790 A.2d 469, 471 (Del. 2()02) ("In order to be held liable in
negligence, a defendant must have been under a legal obligation_a duty-to protect the plaintiff
from the risk of harm which caused his injuries.").

See Riedel v. ICIAmerz`cas Inc., 968 A.2d l7, 20 (Del. 2009)*

_12_

5

Rite Aid properly identifies duty as the key issue here.3 lt seems to

recognize that "‘duty’ is . . . an expression of the sum total of those considerations
of policy which lead the law to say that a particular plaintiff is entitled to
protection."% But Rite Aid fails to "perceive duty simply as an obligation to which

the law will give recognition in order to require one person to conform to a

particular standard of conduct with respect to another person."37

Rite Aid incants some general "duty" principles.38 Then Rite Aid claims
that because it was foreseeable that Mr. Spence’s online research into the
medications and in-person discussion with Michael about his condition would
cause distress, Mr. Spence owed Michael a duty not to investigate the medications,

or at least not to express his paternal concerns to Michael (or Michael’s mother)

9

about his findings.3 And lastly, Rite Aid claims that this Court’s decision in

Rite Aid’s Supp. Mem. at 7 ("The question then is duty.")_.

36 Furek v. Um`v. of Delaware, 594 A.2d 506, 522 (Del. l991) (quoting W. Prosser, Law of
Torts 333 (3d ed. 1964)).

Bradshaw v. Rawlings, 612 F.2d 135, 138 (3d Cir. 1979),_

38 See, e.g., Rite Aid’s Supp. Mem. at 8 ("all persons have a duty ‘to use ordinary care to

prevent others being injured as the result of their conduct"’) (quoting Rowland v. Christian, 443
P.2d 561, 564 (Cal. 1968)); id. at 8-9 ("In general, anyone who does an affirmative act is under a
duty to others to exercise the care of a reasonable man to protect them against an unreasonable
risk of harm to them arising out of the act.") (quoting Wilson v. Urquhart, 20l0 WL 2683031, at
*4 (Del. Super. Ct. July 6, 2010) (quoting Restatement (Second) of Torts § 302 cmt. a)).

39 1a ar 9 (ciring Kuczynskz v. M<,~Laughzzn, 835 A.zd 150, 155 (Dei. Super. Ct. Aug. 27,
2003) (duty "derives from the relationship between the parties and the foreseeable risk of harm
that is implicated by the relationship")).

_13_

Fanean v. Rite Aid Corporation of Delaware‘m supports its assertion that Mr.
Spence owed a duty to Michael. Not so.4l

Rite Aid’s superficial discussion of "duty" in an attempt to concoct one for
Mr. Spence is of little assistance here. Some courts have determined that parties
within certain special relationships owe each other a duty to avoid negligently

inflicting emotional distress on each other.@ But there is no general duty to avoid

43

causing another emotional distress. And this Court will not impose a duty upon

parents that would require them to refrain from compassionate or nurturing acts

that might cause their children discomfort.

984 A.2d 812 (Del. Super. Ct. 20()9),

41 In Fanean, the plaintiff’ s confidential medical and prescription information was given by

a pharmacist to the plaintiff’s daughter and future stepson, which "made its way back" to the
plaintiff’ s fiance and caused her embarrassment. 984 A.2d at 8l5. This Court found that the
complaint properly alleged that the pharmacy owed the plaintiff a duty, because the pharmacy
voluntarily undertook such duty when it agreed to perform pharmacy services for the plaintiff.
Ia'. at 823; see also Walgreen C0. v. Hinchy, 2l N.E.3d 99 (lnd. Ct. App. 20l4) (where
pharmacist gave protected health information to plaintiffs ex-boyfriend and plaintiff brought
suit against pharmacist, boyfriend was not joined to suit). Michael’s father certainly had not
undertaken any such duty toward him.

42 See Jeffrey A. Ehrich, Negligent Infliction of Emotional Distress: A Case for an
lndependent Duly Rule in Minnesota, 37 WM. MITCHELL L. REV. l402, 1443 n.2l7 (20ll)
(discussing the types of contractual relationships giving rise to special relationships that require
parties to refrain from negligently inflicting emotional distress upon each other).

43 See John C.P. Goldberg & Benjamin C. Zipursky, Unrealz'zea’ Torts, 88 VA. L. REV.
1625, 1672-76 (2002) (explaining lack of general duty to avoid negligently inflicting emotional
distress); see also Gu v. BMW of North Am., LLC, 132 Cal. App. 4th l95, 204 (Cal. Ct. App.
2005) ("[T]here is no duty to avoid negligently causing emotional distress to another.").

_14_

As well-put by one court: "The experience of emotional trauma is certainly

not the only defining characteristic of a family relationship, but it is one of them.

Indeed, it is often the price to be paid for being a member of a close family unit."44

And so:

To inject the cold, impersonal logic of the law into such
an arena could lead to the destruction of close family
relationships . . . [F]amily relationship alone is not a
sufficient basis for imposing a duty of care to refrain
from negligently causing emotional distress. lt is not the
province of the law to enforce a code of family or
parental responsibility beyond that necessary to protect
so_s§:i_ety‘= from the burden of supporting those unable to
s'c._;¢_p:;giof'it-_ themselves.“

Recognition of the duty Rite Aid would posit under these circumstances "would be
tantamount to imposing a duty on parents generally to refrain from conduct which
would cause emotional distress to their emancipated, adult children."46 That, this
Court will not do.

As his father, Mr. Spence did not owe Michael some general duty to avoid

causing him emotional distress. And because Michael himself could not have

Fluhany v. Fzuharzy, 59 ca1 App. 4a1 434, 495 (Cai. cr. App. 1997)_.
1a ar 495-96.

Id. at 496.

_15_

brought a NIED claim against his father, neither can Rite Aid.47 Consequently, the
negligent infliction of emotional distress claim must be DISMISSED.

E. THE THlRD-PARTY CoMPLAINT FAILS To PLEAI) A CLA1M oF
PROMISSORY ESTOPPEL BECAUSE THERE WAS NO PROMISE MADE
BETwEEN MR. SPENCE AND MICHAEL.

As does any other plaintiff, to assert Mr. Spence’s potential liability for
Michael’s promissory estoppel claim, Rite Aid must demonstrate by clear and
convincing evidence that: (l) a promise was made; (2) the promisor reasonably
expected to induce action or forbearance on the part of the promisee; (3) the
promisee reasonably relied on the promise and took action to his detriment; and (4)
the promise is binding "because injustice can be avoided only by enforcement of

the promise."48

Rite Aid fails to plead, nor cannot it make out on the facts pleaded, any of
the essential elements of a promissory estoppel claim. Rite Aid has nowhere
alleged, either expressly or via incorporation, facts that would allow one to find
that Mr. Spence made some enforceable promise to Michael such that he could be
liable for promissory estoppel. There is no averment in either the original
complaint or third-party complaint that Mr. Spence made a promise he reasonably

expected Michael would rely upon in his actions or inactions. lt is inconceivable

47 See supra, n.l4.

48 chrysler corp. v. Chapzake H@zdzngs, L¢d., 822 A.2d 1024, 1032 (Dei. 2003).

_15_

under the allegations in one, the other, or both, that Michael relied to his detriment
on any such promise from his father. And, for some of the reasons noted earlier, it
certainly cannot be said that injustice would result if the promise Rite Aid tries to
divine was not enforced. Put simply, Mr. Spence could not be liable to Michael for
promissory estoppel under any reasonably conceivable set of circumstances
susceptible of proof here. That third-party claim too must be DISMISSED.
V. CoNcLusloN

Because Defendants Rite Aid of Delaware, Inc, and Achamma Cherian,
Pharrn. D., RPH, have failed to (and cannot) plead the requisite elements for the
claims they seek to hold Mr. Spence liable for, l\/lr. Spence’s motion to dismiss
their third-party complaint is GRANTED; all of the Defendants’/Third-Party

Plaintiffs’ remarkable and futile claims are DISMISSED.

L Q,..@)

PAUL R. WALLACE, JUDGE

IT IS SO ORDERED.

Original to Prothonotary
cc: All counsel via File & Serve

_17_

II. FACTUAL! AND PROCEDURAL BACKGROUND

A. MICHAEL’S COMPLAINT AGAINsT RITE A1D AND lrs PHARMAC1sT.

C)n June 17, 2014, David Spence ("Mr. Spence") went to a Rite Aid
Pharrnacy in Newark, Delaware to pick up a prescription for his wife, Patricia
Spence. When he asked the pharmacy clerk for Mrs. Spence’s medication, the
clerk informed Mr. Spence there were two prescriptions available for Michael. Mr.
Spence told the clerk Michael was his son, and the clerk brought over two
medications contained in a clear bag_Tivicay and Epzicom. They were placed on
the counter before Mr. Spence in such a way that he could read at least one of their
labels. Mr. Spence asked the clerk what the medications were for, and the clerk in
tum asked the pharmacist-on-duty and manager, Defendant Achamma Cherian,
Pharm. D., RPH. Cherian told Mr. Spence that the medications were anti-virals or
anti-retrovirals. Mr. Spence did not take Michael’s prescriptions but picked up and
paid only for his wife’s.

After leaving the pharmacy, Mr. Spence researched the names of his son’s
medications he was shown at Rite Aid. He found they were used to treat HIV$
The Spences had not known their son was HIV positive. Mr. Spence confided

their son’s diagnosis to his wife. The next day, Mrs. Spence spoke to Michael

1 These facts are derived from the Complaint, Answer, Third-Party Complaint and the
parties’ filings related to the instant motion. While there is some divergence on certain details,
there is no disagreement on the facts significant to this motion’s disposition.

_2_

about his HIV status. According to his complaint, from these events Michael
"suffered severe emotional distress, sleep deprivation, became physically ill, and

vomited."z

After speaking to his mother and father, Michael went to Rite Aid to discuss
with Cherian what had happened the previous day. Cherian was not there, but
another pharmacist told Michael that Cherian would contact him. The next day, on
June l9th, Cherian called Michael and admitted she told Mr. Spence what the
medications were. She then apologized to Michael but insisted "it was impossible
for his father to determine what the medications were for."3

Michael brought claims against Defendants Rite Aid of Delaware, Inc., and
Achamma Cherian, Pharrn. D., RPH, (again, collectively "Rite Aid") for: (l)
healthcare medical negligence; (2) negligence; (3) negligence per se; (4) breach of
confidentiality; (5) invasion of privacy - publication of private facts;
(6) intentional infliction of emotional distress; (7) negligent infliction of emotional

distress; (8) breach of contract; and (9) promissory estoppel.

2 Compl. 11 18,

3 1a 11 20.

4

B. R!TE AID’s THIRD-PARTY CQMPLAH\IT - RITE AID AND 1Ts
PHARMAC1ST ATTEMPT To J01N MIcrLAEL’s FATHER.

Rite Aid has filed a third-party complaint against Mr. Spence. lt says he is
the pharrnacy’s and pharmacist’s joint tortfeasor and is responsible, in part, for
Michael’s injuries. In its charging document Rite Aid neglected to specify which
of Michael’s claims it seeks to pursue against his father. And it also failed to
incorporate Michael’s allegations from his original filing. Instead Rite Aid’s
complaint, in a blanket statement, blithely alleges: that Michael’s injuries "were
directly and/or proximately caused by the intentional and/or reckless and/or
negligent actions" of his father; that his father "is liable to Plaintiff Michael
Spence"; and, that if Rite Aid is responsible for any damages then Michael’s father

"is jointly and severally liable to [Rite Aid] for contribution as to [Michael]’s

claims."4

Third-Party Compl. 11 2l8. The third-party complaint makes some curiously misplaced
factual allegations that are of no moment here. See, e.g., id. 1206 (claiming that Mr. Spence was
authorized to pick up prescriptions for Michael "and no written restriction to this authorization"
had been filed); z'd. 11 210 (parsing semantics - as Rite Aid did at hearing of the motion - while
arguing that Epzicom and Tivicay are classified as anti-retroviral medications, not anti-virals).
Rite Aid’s filings also contain some ill-placed legal arguments. See Rite Aid’s Supp. Mem. at ll
(noting that a supervening cause may shelter a defendant from liability). Evidence of a
supervening cause may be relevant, and the existence of that cause may indeed sometimes shield
a defendant from liability. See Duphily v. Delaware Elec. Co-op, Inc., 662 A.2d 82l, 828 (Del.
1995); Sears, Roebuck C0. v. Huang, 652 A.2d 568, 573 (Del. 1995). But that does not mean the
agent of that supervening cause can necessarily be subject to a third-party claim for contribution.
See, e.g., Duphily, 662 A.2d at 828 (observing that another’s act may be relevant to the injury-
producing event but not actionable); Huang, 652 A.2d at 573 (parent’s negligence might be
relevant to child’s theory of liability, but not actionable and thus not subject to a direct claim of
liability or a third-party claim for contribution).

_4_

C. RITE A1D ABANl)oNs CERTAIN - YET sTILL CLINGs oNTo soME -
CLAIMS AGAINST MICHAEL’S FATHER.

At argument on Mr. Spence’s dismissal motion, the Court pressed Rite Aid
for clarification as to which claims from Michael’s complaint could possibly give
rise to his father’s purported liability. Rite Aid conceded then that the healthcare
medical negligence, negligence, negligence per se, breach of confidentiality, and
breach of contract claims could not be alleged against Mr. Spence.§ Rite Aid still
stubbornly contends, though, that Michael’s father could be held liable as its joint
tortfeasor for his son’s claims alleging: invasion of privacy - publication of private
facts (Complaint Count V); intentional infliction of emotional distress (Complaint
Count VI); negligent infliction of emotional distress (Complaint Count VII); and
promissory estoppel (Complaint Count IX).6

III. STANDARD OF REVIEW

A motion to dismiss a third-party complaint is subject to the same Civil Rule
Rule l2(b)(6) standard as any complaint commencing a civil action in this Court.7
As such, the Court is not required to accept conclusory allegations unsupported by

specific facts.g But if a third-party complaint incorporates by reference the

5 saa Tr. af oral Arg., D@¢. 22, 2015, ar 12-15 (D.l. 40).

€,wb?fj

6 1a ar 15.
7 See Beesly v. Miller, 2014 WL 1759862, at *l (Del. Super. Ct. Apr. 3, 20l4).

See Price v. E.1. duPol/zt de Nemours & Co., Inc., 26 A.3d 162, 166 (Del. 201 l).

_5_

allegations of the original complaint, "the Court must accept as true the well-

pleaded allegations in both the underlying complaint and the third-party

complaint."9

That said, to survive a motion to dismiss, a third-party plaintiff still must
plead (or incorporate) facts sufficient that under any reasonably conceivable set of
circumstances susceptible of proof, it could recover.w When considering a motion

to dismiss under Rule l2(b)(6), the Court will:

(l) accept all well pleaded factual allegations as true; (2) accept
even vague allegations as "well pleaded" if they give the
opposing party notice of the claim; (3) draw all reasonable
inferences in favor of the non-moving party; and (4) [not
dismiss a claim] unless the plaintiff would not be entitled to
recover under any reasonably conceivable set of
circumstances.] 1

A third-party complaint will be dismissed where "it is clearly without merit, which
may be either a matter of law or fact."lz In turn, the Court should dismiss a claim

if a third-party plaintiff fails to plead, or cannot make out on the facts pleaded, an

9 Beesly, 2014 WL 1759862, at *l (quoting Marcucz'lli v. Boardwalk Builders, Inc., 1999
WL 1568612, at *3 (Del. Super. Ct. Dec. 22, 1999)).

1° WP Devon Ass@cs_ v. Har¢sn»zngs, LLC, 2012 wL 3060513, at *3 (Del. Super. Ct. July
26, 20l2) (citing Cambium Lta’. v. Trilantic Capital Partners 111 L.P., 2012 WL 172844, at *l

(Del. Jan. 20, 2012)).

ll See Cent. Mortg. C0. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 535
(Del. 201l) (stating standard for motions to dismiss).

12 Dzam@nd Sm¢e Tel. C0. v. Um'v. ofoezaware, 269 A.zd 52, 53 (Del. 1970); Wzlmzngz@n
Trust C0. v. Polz`zer & Haney, ]nc., 2003 WL 1989703, at *2 (Del. Super. Ct. Apr. 25, 2003).

_6_

essential element of that claim.n And if a plaintiff could not have originally sued

the third-party defendant on a given claim, the claim against the third-party

defendant also must be dismissed.“

IV. DISCUSSION

A. THE HEALTHCARE MEDICAL NEGLIGENCE, NEGLIGENCE, NEGLIGENCE
PER SE, BREACH OF CONFIDENTIALITY, AND BREACH OF CONTRACT

CLAIMS ARE NO LONGER BEFORE THE COURT.

As Rite Aid had to admit at argument of this motion, Mr. Spence could not
be liable to Michael for the healthcare medical negligence, negligence, negligence
per se, breach of confldentiality, or breach of contract claims.l$ Accordingly, to
the extent the third-party complaint sought to hold Michael’s father liable for them,

those claims must be DISMISSED.

13 See Harrz's v. Dependable Usea' Cars, Inc., 1997 WL 358302, at *2-3 (Del. Super. Ct.
Mar. 20, 1997); Wolsl‘enholme v. Hygenic Extermz`nating Co., Inc., 1988 WL 77655, at *l-2
(Del. Super. Ct. July 5, 1988); see also Zebroski v. Progressive Direct Ins. C0., 20l4 WL
2156984, at *6 (Del. Ch. Apr. 30, 20l4).

14 see Mlzlor v. Ezzls, 122 A.zo 314, 318 (Dol. 1956) (“lflllo ploloflff orlgloolly ooulol not
have sued the third-party Wrongdoer, the latter cannot be joined thereafter as a third-party
defendant."); Ferguson v. Davis, 102 A.2d 707, 708 (Del. Super. Ct. 1954) (where there is "no
possible liability or right of action as between the third-party defendant and the plaintiff," the
third-party plaintiff cannot recover from the third-party defendant); Sinex v. Bz`shop, 2005 WL
3007805, at *5 (Del. Super. Ct. Oct. 27, 2005) ("Because plaintiffs could not have sued the third
party defendants, the third party defendants cannot be joined in this lawsuit.").

15 soo Tr. of oral Arg., Doo. 22, 2015, of 12-15 (D.l. 40).

_7_

B. R!TE AID FA1Ls To STATE A CLAIM AGAINST MR. SPENCE FoR PUBLIC
DISCLoSURE oF PR!VATE FACTS.

There are four varieties of the tort of invasion of privacy: (l) intrusion on
solitude; (2) public disclosure of private facts; (3) placing a plaintiff in a false
light; and (4) appropriation for commercial use.16 At issue here is the tort of
publication of private facts. Delaware has adopted the Restatement (Second)’s
definition of that tort:

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, and

(b) is not of legitimate concern to the public.w
The Restatement provides that a matter has been given publicity when it is "made
public, by communicating it to the public at large, or to so many persons that the
matter must be regarded as substantially certain to become one of public
l<nowledge."lg It is not an invasion of privacy to communicate a fact concerning

one’s private life to just one person, or even to a small group.w

16 Martz`n v. Baehler, 1993 WL 258843, at *l (Del. Super. Ct. l\/lay 20, 1993).

" Barker v_ Huang, 610 A.zd 1341, 1350 (Del. 1992) (citing Restatement (Second) of Torts
§ 6521)).

18 Atamian v. Gorkin, 1999 WL 743663, at *3 (Del. Super. Ct. Aug. 13, l999) (citing

Restatement (Second) of Torts § 652D cmt. a) (granting summary judgment on count of public
disclosure of private facts because doctor’s note was communicated only to hospital staff).

_g_

Michael’s complaint and Rite Aid’s third-party complaint allege that upon
his father’s learning Michael was HIV positive one day,zo his mother approached
him the next day about his HIV status.zl There are no allegations that Michael’s
father disclosed his HIV diagnosis to anyone other than Michael’s mother. Thus
the only reasonable inference in Rite Aid’s favor is that Mr. Spence told one
person-his Wife, Michael’s mother_about Michael’s diagnosis. Rite Aid has
adopted this factual allegation as true.zz Such disclosure does not rise to the level
of "publicity" defined by the Restatement. Nor does Mr. Spence’s visit to and
discussion of Michael’s medical status with Michael’s doctor; that visit occurred
with his wife and Mi¢haei.”

Rite Aid’s third-party claim against Mr. Spence having failed to plead, either

expressly or by incorporation, facts supporting this essential element24 of invasion

of privacy against Mr. Spence must be DISMISSED.

Compl. 1]"16; Third-Party Compl. 1[1] 210-13.
Compl. 11 l7.

Rite Aid’s Supp. Mem. at 5, 7, and 9.
Third-Party Compl. 1[1] 214-15.

See supra, n.l3.

