1. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. POHLE v. CHEATHAM Court of Appeals of Indiana, 724 N.E.2d 655 (2000) Case Brief

2. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. POHLE v. CHEATHAM PURPOSE: Describes invasion of privacy and the waiver of privacy rights.

3. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. POHLE v. CHEATHAM CAUSE OF ACTION: Invasion of privacy and intentional infliction of emotional distress.

4. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. POHLE v. CHEATHAM FACTS: On October 13, 1977, Pohle (husband) and Cheatham (wife) were married. They separated in May 1993. In Fall 1993, during this estrangement, Cheatham and Pohle engaged in sexual relations at Pohle’s home, during which Cheatham voluntarily posed for Pohle to take photographs performing a sex act. She did not ask what Pohle intended to do with the pictures or attempt to recover them later. They divorced Dec. 29, 1994. On Feb.28, Pohle made photocopies of the pictures and posted them at several locations and dispersed several dozen copies in Cheatham’s neighborhood and her church. (continued)

5. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. POHLE v. CHEATHAM (continued) In response to Cheatham’s complaint, Pohle raised the defense of waiver based on Cheatham’s voluntary posing for the pictures and failure to inquire as to their use or attempt to gain possession of them. On March 31, 1999, Cheatham filed a motion for partial summary judgment, arguing that, as a matter of law, waiver was not a viable affirmative defense in the instant case. Following a hearing, the trial court granted motion for partial summary judgment.

6. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. POHLE v. CHEATHAM ISSUE: Whether the trial court properly entered partial summary judgment against Pohle’s defense of waiver.

7. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. POHLE v. CHEATHAM HOLDING: Yes.

8. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. POHLE v. CHEATHAM REASONING: Waiver may be shown either by express or implied consent, and a right may be lost by a course of conduct which estops its assertion. However, waiver is an affirmative act and mere silence, acquiescence, or inactivity does not constitute waiver unless there was a duty to speak or act.