from the District Court of Natrona County The Honorable
Catherine E. Wilking, Judge
H. Robinson of Jamieson & Robinson, LLC, Casper, WY; R.
Daniel Fleck of The Spence Law Firm, LLC Jackson, WY; and
John P. LaBuda of LaBuda Law Office, PC, Pinedale, WY.
Argument by Messrs. Robinson and LaBuda.
Warren and Adam J. Tunning of Moulton Bellingham PC,
Billings, MT; and Jeff S. Meyer of Murane & Bostwick,
LLC, Casper, WY. Argument by Mr. Warren.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Gretchen Howard, Audrey Kinion, and Steve Winn (Plaintiffs)
individually filed separate claims in circuit court asserting
invasion of privacy claims against Aspen Way Enterprises,
Inc. (Aspen Way). The circuit court concluded that Wyoming
does not recognize a cause of action for Plaintiffs'
privacy claims and granted Aspen Way summary judgment on
those claims. Plaintiffs appealed, and the district court
affirmed on the same basis. We granted the Plaintiffs'
petitions for writ of review, consolidated their petitions,
and now reverse and remand for proceedings consistent with
Plaintiffs present three issues on appeal, which they state
1. Whether Wyoming recognizes the tort of invasion of
2. If so, whether Wyoming recognizes the elements of the tort
of invasion of privacy/intrusion upon seclusion as set forth
in Restatement (Second) of Torts § 652B (1977).
3. Whether genuine issues of material fact preclude entry of
Aspen Way owns a rent-to-own franchise in Casper, Wyoming,
operating under the name Aaron's Sales and Leasing.
Plaintiffs each leased a computer from Aspen Way pursuant to
lease-purchase agreements, and in May 2015, Plaintiffs
individually filed separate complaints against Aspen Way
related to those agreements. The complaints each generally
alleged that Aspen Way installed software on Plaintiffs'
leased computers, without Plaintiffs' knowledge, that
enabled Aspen Way to track the leased computers'
locations, remotely activate the computers' webcams, and
capture screen shots and key strokes. Based on these allegations,
Plaintiffs asserted that claims for invasion of
privacy/intrusion upon seclusion and breach of the covenant
of good faith and fair dealing.
Plaintiffs filed their separate complaints in the circuit
court for Natrona County. Aspen Way answered each complaint
and subsequently filed motions for summary judgment on each
complaint. As grounds for summary judgment, Aspen Way
asserted Wyoming does not recognize a cause of action for
Plaintiffs' privacy claims and that even if Wyoming did
recognize such a claim, no genuine issue of material fact
exists with respect to either Plaintiffs' privacy claims
or their claims for breach of the covenant of good faith and
fair dealing. Plaintiffs responded with their oppositions.
On May 11, 2016, the circuit court issued orders in the three
cases seeking certification of questions of law to the
district court, including the question of whether Wyoming
recognizes a cause of action for Plaintiffs' privacy
claims. The district court rejected the certified
questions in each case, and the circuit court then ruled on
Aspen Way's summary judgment motions, granting them in
part and denying them in part. With respect to
Plaintiffs' privacy claims, the court ruled such claims
were not recognized in Wyoming and granted Aspen Way summary
judgment. With respect to the claims for breach of the
covenant of good faith and fair dealing, the court found
genuine issues of material fact and denied summary judgment
on those claims. As to the privacy claims, the court ruled
its judgment was final and appealable.
Plaintiffs filed timely notices of appeal to the district
court in each case. On February 23, 2017, the district court
issued orders affirming the circuit court orders. In so
ruling, the court observed:
* * * [A]t this time, there is simply not the historical and
judicial context to declare that Wyoming definitively
recognizes the tort of invasion of privacy/intrusion upon
seclusion. In the absence of a clear indication that Wyoming
would recognize such a claim, this Court will not presume
upon the functions of the Wyoming Supreme Court with regard
to the proper development of the common law in Wyoming.
On March 10, 2017, Plaintiffs filed petitions for writ of
review in each case, and on April 4, 2017, this Court issued
orders granting the petitions and consolidating the cases for
We review the circuit court's entry of summary judgment
de novo, meaning we consider the same materials and
apply the same standards as the circuit court. Elec.
Wholesale Supply Co., Inc. v. Fraser, 2015 WY 105,
¶ 13, 356 P.3d 254, 258 (Wyo. 2015). "We examine
the record from the vantage point most favorable to the party
opposing the motion, and we give that party the benefit of
all favorable inferences which may fairly be drawn from the
record." Id. (quoting Baker v. Speaks,
2014 WY 117, ¶ 9, 334 P.3d 1215, 1219 (Wyo. 2014)). The
question of whether a cause of action is or will be
recognized in Wyoming is a question of law we review de
novo. Townsend v. Living Centers Rocky Mountain,
Inc., 947 P.2d 1297, 1298 (Wyo. 1997).
Plaintiffs ask this Court to recognize a common law cause of
action for the invasion of privacy tort defined by the
Restatement (Second) of Torts (1977) as intrusion upon
seclusion. Aspen Way argues against recognizing a common law
cause of action for Plaintiffs' privacy claims,
contending that if such a cause of action is to be recognized
in Wyoming, it should be created and defined by legislative
action. We agree with Plaintiffs that the Restatement cause
of action for intrusion upon seclusion is consistent with the
value our state places on privacy, and we therefore recognize
the tort as part of Wyoming's common law.
Intrusion upon Seclusion as Defined by Restatement
(Second) of Torts
The Restatement (Second) of Torts generally defines liability
for an invasion of privacy as follows:
1) One who invades the right of privacy of another is subject
to liability for the resulting harm to the interests of the
(2) The right of privacy is invaded by
(a) unreasonable intrusion upon the seclusion of another, as
stated in ...