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Robert C. Ozer6/23/1997
EN BANC
CHIEF JUSTICE VOLLACK delivered the Opinion of the Court.
JUSTICE HOBBS and JUSTICE BENDER do not participate.
We granted certiorari to review the court of appeals decision in Borquez v. Ozer, 923 P.2d 166 (Colo. App. 1995). The court of appeals affirmed the trial court's judgment entered upon a jury verdict in favor of the respondent, Robert Borquez (Borquez), in his claims for wrongful discharge and invasion of privacy. We granted certiorari to address the following issues: (1) whether the court of appeals correctly held that the jury verdict on wrongful discharge based on sexual orientation was supportable as a violation of section 24-34-402.5(1), 10A C.R.S. (1996 Supp.); (2) whether the court of appeals correctly recognized an invasion of privacy tort claim based on unreasonable publicity given to one's private life; and (3) whether the court of appeals correctly held that the jury was properly instructed on the invasion of privacy tort claim.
We hold that, as to issue one, the court of appeals erroneously relied on section 24-34-402.5(1) in affirming the jury verdict; we therefore reverse the court on this issue. As to issue two, we affirm the court of appeals' recognition of a tort claim for invasion of privacy in the nature of unreasonable publicity given to one's private life. However, as to issue three, we reverse the court of appeals because in the current case, the trial court erroneously instructed the jury on the public disclosure requirement of this tort claim. We therefore affirm in part and reverse in part, and remand to the court of appeals with directions to return the case to the trial court for a new trial.
I.
In June of 1990, Borquez began working as an associate attorney for Ozer & Mullen, P.C. (the Ozer law firm). During his employment with the Ozer law firm, Borquez received three merit raises, the last of which was awarded on February 15, 1992, eleven days prior to his termination.
On February 19, 1992, Borquez, who is homosexual, learned that his partner was diagnosed with Acquired Immune Deficiency Syndrome (AIDS). Borquez' physician advised him that he should be tested for the human immunodeficiency virus (HIV) immediately. Borquez was anxious about his health and determined that he could not effectively represent a client in a deposition that afternoon and an arbitration hearing the following day. Borquez subsequently telephoned his secretary and attempted to arrange for a colleague to fill in for him at the deposition and hearing. Borquez' secretary and another staff member told the president and shareholder of the law firm, Robert Ozer (Ozer), about Borquez' telephone call. Ozer then directed Borquez' secretary to transfer to him any further telephone calls from Borquez.
Borquez and Ozer subsequently spoke twice on the telephone. During the second conversation, Borquez decided that he would disclose his situation to Ozer. Borquez asked Ozer to keep the information he was about to disclose confidential, but Ozer made no reply. Borquez then told Ozer that he was homosexual, that his partner had been diagnosed with AIDS, and that he needed to be tested for HIV. Ozer responded by stating that he would handle the deposition and arbitration hearing and that Borquez should "do what [he needed] to do."
After speaking with Borquez, Ozer telephoned his wife, Renee Ozer, and told her of Borquez' disclosure. Additionally, Ozer informed the law firm's office manager about Borquez' situation and discussed Borquez' disclosure with two of the law firm's secretaries. On February 21, 1992, Borquez returned to the office and became upset when he learned that everyone in
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