Case No. A11A2053
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Date Created: 03/10/16
Varsha Mandiga JENKINS V WACHOVIA BANK NA et al FACTS Case No A11A2053 When Decided February 21 2012 Where Court of Appeals of Georgia Who Appellant James W Kytle Appellees Womble Carlyle Sandridge amp Rice Robert Rles Ambler Jr John Gregory Perry McFADDEN Judge What In Stephen Kale Jenkins brought a tort action against Wachovia Bank N A Wells Fargo Bank N A and all predecessor and successor entities and John Doe corporations in which he alleged that a Bank teller had improperly accessed J enkins39s confidential information and given it to her husband allowing the husband to steal J enkins39s identity Pertinent to this appeal Jenkins asserted claims that the Bank negligently failed to protect the information breached a duty of confidentiality and invaded his privacy The trial court granted the Bank39s motion for judgment on the pleadings ISSUES The Bank falsely represented to its customers and members of the general public that it created and implemented a system to adequately protect the private and personal identifying information entrusted to it by its customers and by customers of acquired financial institutions The teller gave the information to her husband whose last name also was Jenkins and who used the information to steal J enkins39s identity This damaged his credit hindered his efforts to obtain loans required him to spend enormous amounts of time and energy trying to correct false credit reports and caused him emotional injury Jenkins argues that the facts alleged in his complaint demonstrate all of these elements while the Bank contends that as a matter of law Jenkins cannot show that the Bank owed him a duty that it breached that duty or that any such breach caused the theft of his identity 0 The trial court thus erred in granting judgment on the pleadings to the Bank as to this claim The Bank cites Winter Park Condo Ltd Partnership v Wachovia Bank N A 2009 WL 290992 MDFla2009 for the proposition that the GLBA does not impose upon it a duty to protect its customers39 information Causation Jenkins contends that the Bank39s breach of its duty to protect his information proximately caused the theft of his identity because the teller who improperly obtained the information gave it to her husband the identity thief 0 The Bank responds that the acts of its employee and her husband broke the causal chain and precluded its liability as a matter of law Breach The Bank argues that allowing a teller access to confidential customer information alone cannot demonstrate a breach of its duty to protect that information under the GLBA emphasizing that tellers need access to customer information to perform their jobs Breach of a Duty of Confidentiality Jenkins alleged a separate claim that the Bank breached its implied duty to him to keep and maintain his credit and identity information in confidence 0 He argues that he had a confidential relationship with the Bank by virtue of the GLBA The court disagrees RULES A motion for judgment on the pleadings should be granted only if the moving party is clearly entitled to judgment Negligence In order to have a viable negligence action a plaintiff must satisfy the elements of the tort namely the existence of a duty on the part of the defendant a breach of that duty causation of the alleged injury and damages resulting from the alleged breach of the duty Existence of a duty In a negligence action the legal duty is the obligation to conform to a standard of conduct under the law for the protection of others against unreasonable risks of harmThe duty can arise either from a valid legislative enactment that is by statute or be imposed by a common law principle recognized in the case law GrammLeachBliley Act GLBA 15 US C 6801 et seq It is policy of the Congress that each financial institution has an affirmative and continuing obligation to protect the security and confidentiality of its customers39 nonpublic personal information Invasion of Privacy 0 l intrusion upon the plaintiffs seclusion or solitude or into his private affairs 0 2 public disclosure of embarrassing private facts about the plaintiff 0 3 publicity which places the plaintiff in a false light in the public eye and 0 4 appropriation for the defendant39s advantage of the plaintiffs name and likeness OCGA 5116 When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another although no cause of action is given in express terms the injured party may recover for the breach of such legal duty if he suffers damage thereby OCGA 23258 Confidential relations defined ANAYLSIS Winter Park Condominium asserts that the GLBA imposes additional duties upon banks such While this is true as far as it goes it is not enough to support Winter Park39s claim of breach of fiduciary as Wachovia to safeguard their customers39 confidential financial information duty as it does not suggest that the possession of a customer39s confidential information by a bank standing alone is enough to establish a fiduciary relationship between the bank and the customer I Thus Winter Park Condo Ltd Partnership concerns a claim of breach of fiduciary duty based on the existence of a fiduciary relationship not a claim of negligence based upon a duty of care imposed by the GLBA I We must take as true however J enkins39s allegation that the teller in this case had no need for his information and that her access to it was unnecessary We also must take as true J enkins39s allegations that the Bank failed to implement and follow security procedures regarding customer information failed to protect that information39s confidentiality failed to guard against its misuse and failed to detect report and stop its employee39s suspicious activities regarding customer information I The facts alleged by Jenkins were sufficient to support a claim that the Bank breached its duty under theories of both negligence and negligence per se I Generally an independent intervening criminal act of a third party without which the injury would not have occurred will be treated as the proximate cause of the injury superseding any negligence of the defendant unless the intervening criminal act is a reasonably foreseeable consequence of the defendant39s negligent act I But we cannot conclude that as a matter of law the intervening criminal act in this case the wrongful appropriation and use of J enkins39s information by an identity thief was an unforeseeable consequence of the Bank39s alleged breach of its duty to protect that information CONCLUSION I We find no error in the trial court39s grant of judgment on the pleadings to the Bank on the invasion of privacy claim Judgment af rmed in part reversed in part