This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Greg Copeland, et al.,



Hubbard Broadcasting, Inc.,

d/b/a KSTP-TV, et al.,


Filed November 25, 1997


Peterson, Judge

Ramsey County District Court

File No. C19312721

Patrick T. Tierney, Bonnie J. Bennet, Collins, Buckley, Sauntry & Haugh, W-1110 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101-1379 (for appellants),

Robert Lewis Barrows, Carolyn V. Wolski, Leonard, Street, and Deinard, 150 South Fifth Street, Suite 2300, Minneapolis, MN 55402 (for respondents),

Paul R. Hannah, 2625 American Bank Building, 101 East Fifth Street, St. Paul, MN 55101 (for respondents)

Considered and decided by Davies, Presiding Judge, Klaphake, Judge, and Peterson, Judge.



In this trespass action, homeowners argue that the trial court erred by (1) denying their motion to amend their complaint to add a claim for punitive damages; and (2) granting respondent's motion for partial summary judgment on homeowners' claim for emotional damages. Homeowners also ask this court to reconsider its refusal to recognize the tort of invasion of privacy. We affirm.


In 1993, KSTP television broadcast an investigative report on the practices of two veterinarians. One of the veterinarians, Dr. Sam Ulland, treated Greg and Betty Copeland's dog. As part of its investigative report, KSTP arranged for Patty Johnson, a newsroom employee at KSTP, to accompany Ulland on a visit to Copelands' home. Ulland received Copelands' permission to bring Johnson with him. Johnson told Ulland and Copelands that she was a university student considering a career as a veterinary technician. She did not tell them that she was also an employee of KSTP.

While in Copelands' home, Johnson secretly videotaped Ulland performing surgery on Copelands' dog. Johnson did not go anywhere in Copelands' home without their permission, nor did she damage anything in the home.

When the investigative report was broadcast, it included two brief portions of the videotape made in Copelands' house. Copelands sued KSTP and Johnson (collectively KSTP) for trespass and later moved to amend their complaint to add claims for invasion of privacy and violation of state and federal wiretapping statutes. The trial court denied the motion to amend and granted KSTP's summary judgment motion on the trespass claim. Copelands appealed.

In Copeland v. Hubbard Broad., Inc., 526 N.W.2d 402, 406 (Minn. App. 1995) (Copeland I), review denied (Minn. Mar. 29, 1995), this court affirmed the denial of Copelands' motion to add claims for invasion of privacy and violation of wiretapping statutes and reversed the summary judgment granted KSTP on Copelands' trespass claim.

On remand, Copelands moved for leave to amend their complaint to add a punitive damages claim to their trespass action. KSTP moved for partial summary judgment to preclude Copelands from making any claim for damages based on emotional distress or mental anguish. The trial court denied Copelands' motion to amend and granted KSTP's motion for partial summary judgment.

On the eve of trial, the trial court denied Copelands' third motion to add a claim for punitive damages, as well as a motion to recover mesne profits measured by what KSTP allegedly earned from the story in issue. As a result of this ruling, only nominal damages were available to Copelands. The trial court found that KSTP committed a trespass and awarded Copelands nominal damages of $1.

While the remanded case was pending, Copelands commenced a new action alleging only invasion of privacy. This action named the same parties and alleged the same facts as the remanded action. KSTP objected to the second action and notified Copelands of its intention to claim sanctions under Minn. Stat. § 549.21 (1996) and Minn. R. Civ. P. 11. The trial court dismissed Copelands' second action, but denied KSTP's motion for sanctions because it determined Copelands had made a "good faith argument for changing existing law and filed for proper purposes only."



Copelands argue that the trial court erred by denying their motion to amend their complaint to include a claim for punitive damages. They contend that Minn. Stat. § 549.20 (1996) required the trial court to grant their motion because they presented prima facie evidence demonstrating a deliberate disregard for the rights or safety of others. We disagree.

The trial court's denial of a motion to add a punitive damages claim may be reviewed on appeal from a final judgment. McKenzie v. Northern States Power Co., 440 N.W.2d 183, 184 (Minn. App. 1989). A denial of a motion to add a punitive damages claim "will not be reversed, absent a demonstrated abuse of the trial court's discretion." Id. "Punitive damages are not generally favored by the law." Lewis v. Equitable Life Assurance Soc'y of the U.S., 389 N.W.2d 876, 892 (Minn. 1986).

Minn. Stat. 549.191 "'creates a preliminary evidentiary burden which plaintiff must meet before he may plead punitive damages.'" McKenzie, 440 N.W.2d at 184, (Minn. App. 1989) (quoting Fournier v. Marigold Foods, Inc., 678 F. Supp. 1420, 1422 (D. Minn. 1988)). The moving party must allege an applicable legal basis under Minn. Stat. § 549.20 or other law for awarding punitive damages, and must submit affidavits demonstrating the factual basis for the claim. Minn. Stat. § 549.191 (1996).

"[I]f the court finds prima facie evidence" supports the claim for punitive damages, it "shall" grant leave to amend. Minn. Stat. § 549.191. Prima facie evidence is that evidence which, if unrebutted, would support a judgment in that party's favor. See Black's Law Dictionary 1071 (5th ed. 1979). Necessarily then, the trial court must consider the elements and burden of proof required to recover punitive damages when deciding whether prima facie evidence has been submitted and ruling on a motion to amend.

McKenzie, 440 N.W.2d at 184 (alteration in original).

At trial, punitive damages may be allowed "only upon clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others." Minn. Stat. § 549.20, subd. 1(a). Thus, where a plaintiff fails to produce an affidavit that reasonably allows a conclusion that clear and convincing evidence will establish that a defendant showed deliberate disregard for the rights or safety of others, no basis for amending the complaint is established. McKenzie, 440 N.W.2d at 184-85.

A defendant has acted with deliberate disregard for the rights or safety of others if the defendant has knowledge of facts or intentionally disregards facts that create a high probability of injury to the rights or safety of others and:

(1) deliberately proceeds to act in conscious or intentional disregard of the high degree of probability of injury to the rights or safety of others; or

(2) deliberately proceeds to act with indifference to the high probability of injury to the rights or safety of others.

Minn. Stat. § 549.20, subd. 1(b).

In denying the motion to amend, the trial court found that Copelands failed to submit an affidavit in support of their claim for punitive damages, and concluded, "An intentional egregious act is needed to support a claim for punitive damages. None is pleaded here."

Copelands contend that the evidence demonstrates that KSTP deliberately disregarded their rights by trespassing on their property without their consent and by covertly videotaping while on the property. But Copelands do not cite any evidence indicating that anyone at KSTP knew that it would be unlawful for an employee to enter Copelands' home as Johnson did, and, therefore, that doing so would injure Copelands' rights. Without evidence indicating that someone at KSTP knew that entering Copelands' home as Johnson did would violate their rights, it could not be concluded at trial that anyone at KSTP deliberately acted in conscious or intentional disregard of, or with indifference to, a high probability of injury to Copelands' rights. The trial court did not abuse its discretion by denying the motion to amend.


Copelands also challenge the trial court's order granting partial summary judgment to KSTP on their claim for emotional damages. Copelands assert that where an intentional tort has been committed, and where the defendant intentionally, consciously, and deliberately violated the plaintiffs' rights, damages for emotional damages are recoverable even absent proof of a physical injury. We disagree.

On appeal from summary judgment, this court must determine whether any genuine issue of material fact exists and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). This court must view the evidence in the light most favorable to the nonmoving party. Id. The nonmoving party, however,

cannot rely on the pleadings alone to defeat a summary judgment motion but instead must produce specific facts which establish the existence of a genuine issue for trial.

Krogness v. Best Buy Co., 524 N.W.2d 282, 285 (Minn. App. 1994), review denied (Minn. Jan. 25, 1995).

[S]ummary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial.

Lloyd. V. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994).

In tort cases, emotional distress may be an element of damages in only three circumstances.

First, a plaintiff who suffers a physical injury as a result of another's negligence may recover for the accompanying mental anguish. Second, a plaintiff may recover for negligent infliction of emotional distress when physical symptoms arise after and because of emotional distress, if the plaintiff was actually exposed to physical harm as a result of the negligence of another (the "zone-of-danger" rule). Finally, a plaintiff may recover emotional distress damages when there has been a "direct invasion of the plaintiff's rights such as that constituting slander, libel, malicious prosecution, seduction, or other like willful, wanton, or malicious conduct."

Lickteig v. Alderson, Ondov, Leonard & Sween, P.A., 556 N.W.2d 557, 560 (Minn. 1996) (quoting State Farm Mut. Auto. Ins. Co. v. Village of Isle, 265 Minn. 360, 368, 122 N.W.2d 36, 41 (1963)) (citations omitted).

In Garvis v. Employers Mut. Cas. Co., 497 N.W.2d 254, 257 n.3 (Minn. 1993), the supreme court stated that

[b]ecause emotional distress is highly subjective, often transient, and easily alleged, our tort law in addition to a "zone of danger" requirement, also requires physical manifestation of the distress as proof of the genuineness and gravity of the emotional suffering.

In Soucek v. Banham, 503 N.W.2d 153, 164 (Minn. App. 1993), this court stated that although the supreme court in Garvis was not applying the malicious conduct exception to the zone of danger rule,

a fair reading of the statement implies that physical manifestations are required whether the general rule, zone of danger, or the exception, malicious conduct, is being applied.

The physical manifestation test is designed to assure the genuineness of the alleged emotional distress. Leaon v. Washington County, 397 N.W.2d 867, 875 (Minn. 1986). Thus, plaintiffs alleging emotional distress are required to meet a minimum level of proof to establish an emotional distress claim. This minimum level is not met by: (1) problems sleeping, fear of answering the door and telephone, and depression; see Elstrom v. Independent Sch. Dist. No. 270, 533 N.W.2d 51, 57 (Minn. App. 1995) (denying recovery where plaintiff suffered from insomnia, crying spells, a fear of answering the door and telephone and depression, which caused her to seek treatment), review denied (Minn. Jul. 27, 1995); (2) fear of what may happen in the future; see K.A.C v. Benson, 527 N.W.2d 553, 560 (Minn. 1995) (denying recovery to the patient of an HIV-infected doctor based on a fear of contracting HIV); (3) temporary weight loss, depression, or feelings of anger, fear, and bitterness; see Leaon, 397 N.W.2d at 869, 875 (denying recovery to a person who was purposely humiliated at a stag party); (4) poor mental state, financial hardship; see Potthoff v. Jefferson Lines, Inc., 363 N.W.2d 771, 777 (Minn. App. 1985) (allowing recovery for emotional distress damages in a tortious interference with contract case, but finding evidence insufficient to prove emotional distress); (5) loss of sleep, sore throats, cold sores, and headaches; see Stubbs v. North Mem'l Med. Ctr., 448 N.W.2d 78, 79-81 (Minn. App. 1989) (denying recovery to patient whose doctor published without authorization "before" and "after" pictures of the patient's cosmetic surgery), review denied (Minn. Jan. 12, 1990).

Copelands have not sought medical treatment for their alleged emotional distress. Betty Copeland testified that after the trespass by KSTP she does not answer the door much, feels humiliated, has trouble sleeping, has nightmares, and does not trust anyone. Greg Copeland testified that since the trespass by KSTP he has felt humiliated, used an answering machine to screen telephone calls, has an increased appetite, and does not sleep as well as before.

Viewing the evidence in the light most favorable to Copelands, the physical symptoms to which they testified do not rise to the level required to support their claim for emotional damages. The trial court did not err in granting partial summary judgment.


Copelands argue that this court should reconsider its refusal to recognize a claim for invasion of privacy. In Copeland I, this court held that although KSTP's actions may satisfy the elements for the tort of intrusion, Minnesota has not recognized any of the four invasion of privacy torts. Copeland I, 526 N.W.2d at 406.

"Issues determined in a first appeal will not be relitigated in the trial court nor re-examined in a second appeal." Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 720 (Minn. 1987). We will not re-examine the invasion of privacy issue because it was determined in Copelands' first appeal. We decline to award KSTP sanctions for Copelands' attempt to resurrect their invasion of privacy claim.