Opinion

WERDEGAR, J.

More than 100 years ago, Louis Brandéis and Samuel Warren complained that the press, armed with the then recent invention of “instantaneous photographs” and under the influence of new “business methods,” was “overstepping in every direction the obvious bounds of propriety and of decency.” (Warren & Brandéis, The Right to Privacy (1890) 4 Harv. L.Rev. 193, 195-196 (hereafter Brandéis).) Even more ominously, they noted the “numerous mechanical devices” that “threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’ ” (Id. at p. 195.) Today, of course, the newspapers of 1890 have been joined by the electronic media; today, a vast number of books, journals, television and radio stations, cable channels and Internet content sources all compete to satisfy our thirst for knowledge and our need for news of political, economic and cultural events—as well as our love of gossip, our curiosity about the private lives of others, and “that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors.” (Id. at p. 196.) Moreover, the “devices” available for recording and transmitting what would otherwise be private have multiplied and improved in ways the 19th century could hardly imagine.

Over the same period, the United States has also seen a series of revolutions in mores and conventions that has moved, blurred and, at times, seemingly threatened to erase the line between public and private life. While even in their day Brandéis and Warren complained that “the details of sexual relations are spread broadcast in the columns of the daily papers” (Brandéis, supra, 4 Harv. L.Rev. at p. 196), today’s public discourse is particularly notable for its detailed and graphic discussion of intimate personal and family matters—sometimes as topics of legitimate public concern, sometimes as simple titillation. More generally, the dominance of the visual image in contemporary culture and the technology that makes it possible to capture and, in an instant, universally disseminate a picture or sound allows *208us, and leads us to expect, to see and hear what our great-grandparents could have known only through written description.

The sense of an ever-increasing pressure on personal privacy notwithstanding, it has long been apparent that the desire for privacy must at many points give way before our right to know, and the news media’s right to investigate and relate, facts about the events and individuals of our time. Brandéis and Warren were themselves aware that recognition of the right to privacy requires a line to be drawn between properly private events, words and actions and those of “public and general interest” with which the community has a “legitimate concern.” (Brandéis, supra, 4 Harv. L.Rev. at p. 214.) As early as 1931, in the first California case recognizing invasion of privacy as a tort, the court observed that the right of privacy “does not exist in the dissemination of news and news events.” (Melvin v. Reid (1931) 112 Cal.App. 285, 290 [297 P. 91].)

Also clear is that the freedom of the press, protected by the supreme law of the First and Fourteenth Amendments to the United States Constitution, extends far beyond simple accounts of public proceedings and abstract commentary on well-known events. “The guarantees for speech and press are not the preserve of political expression or comment on public affairs, essential as those are to healthy government. One need only pick up any newspaper or magazine to comprehend the vast range of published matter which exposes persons to public view, both private citizens and public officials. Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press.” {Time, Inc. v. Hill (1967) 385 U.S. 374, 388 [87 S.Ct. 534, 542, 17 L.Ed.2d 456].) Thus, “[t]he right to keep information private was bound to clash with the right to disseminate information to the public.” {Briscoe v. Reader’s Digest Association, Inc. (1971) 4 Cal.3d 529, 534 [93 Cal.Rptr. 866, 483 P.2d 34, 57 A.L.R.3d 1].)

Despite, then, the intervening social and technological changes since 1890, the fundamental legal problems in defining a right of privacy vis-á-vis the news media have not changed—they have, if anything, intensified. At what point does the publishing or broadcasting of otherwise private words, expressions and emotions cease to be protected by the press’s constitutional and common law privilege—its right to report on matters of legitimate public interest—and become an unjustified, actionable invasion of the subject’s private life? How can the courts fashion and administer meaningful rules for protecting privacy without unconstitutionally setting themselves up as censors or editors? Publication or broadcast aside, do reporters, in their *209effort to gather the news, have any special privilege to intrude, physically or with sophisticated photographic and recording equipment, into places and conversations that would otherwise be private? Questions of this nature have concerned courts and commentators at least since Brandéis and Warren wrote their seminal article, and continue to do so to this day.1

In the present case, we address the balance between privacy and press freedom in the commonplace context of an automobile accident. Plaintiffs, two members of a family whose activities and position did not otherwise make them public figures, were injured when their car went off the highway, overturning and trapping them inside. A medical transport and rescue helicopter crew came to plaintiffs’ assistance, accompanied on this occasion by a video camera operator employed by a television producer. The cameraman filmed plaintiffs’ extrication from the car, the flight nurse and medic’s efforts to give them medical care during the extrication, and their transport to the hospital in the helicopter. The flight nurse wore a small microphone that picked up her conversations with other rescue workers and with one of the plaintiffs. This videotape and sound track were edited into a segment that was broadcast, months later, on a documentary television show, On Scene: Emergency Response. Plaintiffs, who consented neither to the filming and recording nor to the broadcast, allege the television producers thereby intruded into a realm of personal privacy and gave unwanted publicity to private events of their lives.

The trial court granted summary judgment for the producers on the ground that the events depicted in the broadcast were newsworthy and the producers’ activities were therefore protected under the First Amendment to the United States Constitution. The Court of Appeal reversed, finding triable issues of fact exist as to one plaintiff’s claim for publication of private facts and legal error on the trial court’s part as to both plaintiffs’ intmsion claims. Agreeing with some, but not all, of the Court of Appeal’s analysis, we conclude summary judgment was proper as to plaintiffs’ cause of action for publication of private facts, but not as to their cause of action for intrusion.2

*210Facts and Procedural History

On June 24, 1990, plaintiffs Ruth and Wayne Shulman, mother and son, were injured when the car in which they and two other family members were riding on interstate 10 in Riverside County flew off the highway and tumbled down an embankment into a drainage ditch on state-owned property, coming to rest upside down. Ruth, the most seriously injured of the two, was pinned under the car. Ruth and Wayne both had to be cut free from the vehicle by the device known as “the jaws of life.”

A rescue helicopter operated by Mercy Air was dispatched to the scene. The flight nurse, who would perform the medical care at the scene and on the way to the hospital, was Laura Carnahan. Also on board were the pilot, a medic and Joel Cooke, a video camera operator employed by defendants Group W Productions, Inc., and 4MN Productions. Cooke was recording the rescue operation for later broadcast.

Cooke roamed the accident scene, videotaping the rescue. Nurse Carnahan wore a wireless microphone that picked up her conversations with both Ruth and the other rescue personnel. Cooke’s tape was edited into a piece approximately nine minutes long, which, with the addition of narrative voice-over, was broadcast on September 29, 1990, as a segment of On Scene: Emergency Response.

The segment begins with the Mercy Air helicopter shown on its way to the accident site. The narrator’s voice is heard in the background, setting the scene and describing in general terms what has happened. The pilot can be heard speaking with rescue workers on the ground in order to prepare for his landing. As the helicopter touches down, the narrator says: “[Fjour of the patients are leaving by ground ambulance. Two are still trapped inside.” (The first part of this statement was wrong, since only four persons were in the car to start.) After Carnahan steps from the helicopter, she can be seen and heard speaking about the situation with various rescue workers. A firefighter assures her they will hose down the area to prevent any fire from the wrecked car.

The videotape shows only a glimpse of Wayne, and his voice is never heard. Ruth is shown several times, either by brief shots of a limb or her *211torso, or with her features blocked by others or obscured by an oxygen mask. She is also heard speaking several times. Carnahan calls her “Ruth,” and her last name is not mentioned on the broadcast.

While Ruth is still trapped under the car, Carnahan asks Ruth’s age. Ruth responds, “I’m old.” On further questioning, Ruth reveals she is 47, and Carnahan observes that “it’s all relative. You’re not that old.” During her extrication from the car, Ruth asks at least twice if she is dreaming. At one point she asks Carnahan, who has told her she will be taken to the hospital in a helicopter: “Are you teasing?” At another point she says: “This is terrible. Am I dreaming?” She also asks what happened and where the rest of her family is, repeating the questions even after being told she was in an accident and the other family members are being cared for. While being loaded into the helicopter on a stretcher, Ruth says: “I just want to die.” Carnahan reassures her that she is “going to do real well,” but Ruth repeats: “I just want to die. I don’t want to go through this.”

Ruth and Wayne are placed in the helicopter, and its door is closed. The narrator states: “Once airborne, Laura and [the flight medic] will update their patients’ vital signs and establish communications with the waiting trauma teams at Loma Linda.” Carnahan, speaking into what appears to be a radio microphone, transmits some of Ruth’s vital signs and states that Ruth cannot move her feet and has no sensation. The video footage during the helicopter ride includes a few seconds of Ruth’s face, covered by an oxygen mask. Wayne is neither shown nor heard.

The helicopter lands on the hospital roof. With the door open, Ruth states while being taken out: “My upper back hurts.” Carnahan replies: “Your upper back hurts. That’s what you were saying up there.” Ruth states: “I don’t feel that great.” Carnahan responds: “You probably don’t.”

Finally, Ruth is shown being moved from the helicopter into the hospital. The narrator concludes by stating: “Once inside both patients will be further evaluated and moved into emergency surgery if need be. Thanks to the efforts of the crew of Mercy Air, the firefighters, medics and police who responded, patients’ lives were saved.” As the segment ends, a brief, written epilogue appears on the screen, stating: “Laura’s patient spent months in the hospital. She suffered severe back injuries. The others were all released much sooner.”

The accident left Ruth a paraplegic. When the segment was broadcast, Wayne phoned Ruth in her hospital room and told her to turn on the television because “Channel 4 is showing our accident now.” Shortly afterward, several hospital workers came into the room to mention that a videotaped segment of her accident was being shown. Ruth was “shocked, so to *212speak, that this would be run and I would be exploited, have my privacy invaded, which is what I felt had happened.” She did not know her rescue had been recorded in this manner and had never consented to the recording or broadcast. Ruth had the impression from the broadcast “that I was kind of talking nonstop, and I remember hearing some of the things I said, which were not very pleasant.” Asked at deposition what part of the broadcast material she considered private, Ruth explained: “I think the whole scene was pretty private. It was pretty gmesome, the parts that I saw, my knee sticking out of the car. I certainly did not look my best, and I don’t feel it’s for the public to see. I was not at my best in what I was thinking and what I was saying and what was being shown, and it’s not for the public to see this trauma that I was going through.”

Ruth and Wayne sued the producers of On Scene: Emergency Response, as well as others.3 The first amended complaint included two causes of action for invasion of privacy, one based on defendants’ unlawful intrusion by videotaping the rescue in the first instance and the other based on the public disclosure of private facts, i.e., the broadcast.

Defendants moved for summary judgment, contending primarily that their conduct was protected by the First Amendment because of the broadcast’s newsworthy content. In their response to the summary judgment motion, plaintiffs conceded, as undisputed facts, that an account of their accident and rescue appeared in a San Bernardino area newspaper shortly after the rescue and before the broadcast; that Mercy Air was dispatched to the scene by Riverside County officials and rendered service pursuant to Mercy Air’s license and agreement with the county; and that auto accidents on public highways and publicly provided emergency rescue and medical services were both matters of public interest that constituted public affairs.

The trial court granted the media defendants’ summary judgment motion, basing its ruling on plaintiffs’ admissions that the accident and rescue were matters of public interest and public affairs. Those admissions, in the trial court’s view, showed as a matter of law that the broadcast material was newsworthy, thereby vesting the media defendants’ conduct with First Amendment protection. The court entered judgment for defendants on all causes of action.

The Court of Appeal reversed and remanded for further proceedings, but on limited grounds arid as to some causes of action only. First, the Court of *213Appeal held plaintiffs had no reasonable expectation of privacy in the events at the accident scene itself. According to the lower court, “Appellants’ accident occurred on a heavily traveled public highway .... The videotape itself shows a crowd of onlookers peering down at the rescue scene below. Appellants could be seen and heard by anyone at the accident site itself and could not have had a reasonable expectation of privacy at the scene in regard to what they did or said. Their statements or exclamations could be freely heard by all who passed by and were thus public, not private.” Once inside the helicopter, however, the court next reasoned, plaintiffs did have a reasonable expectation of privacy; the helicopter was essentially an airborne ambulance, and an ambulance in emergency medical use is considered a private space, both by social tradition and by analogy to a hospital room, which was deemed private in Noble v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654 [109 Cal.Rptr. 269, 73 A.L.R.3d 1164],

As to Ruth’s cause of action for publication of private facts (limited to the broadcast of events recorded inside the helicopter), the Court of Appeal concluded triable issues of fact existed on the element of offensiveness and on a defense of newsworthiness. With regard to plaintiffs’ claims of intrusion, also as related to the recording of events in the helicopter, the Court of Appeal, citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 [26 Cal.Rptr.2d 834, 865 P.2d 633], held the trial court erred in applying a complete defense of newsworthiness; instead, the trial court should have conducted an analysis balancing plaintiffs’ privacy rights against defendants’ First Amendment interest in recording the rescue. The Court of Appeal therefore remanded for further proceedings as to both plaintiffs’ cause of action for intrusion and as to Ruth’s cause of action for publication of private facts.

We conclude the Court of Appeal’s judgment should be affirmed except insofar as it remanded for further proceedings on Ruth’s private facts claim. With regard to that claim, we hold that the material broadcast was newsworthy as a matter of law and, therefore, cannot be the basis for tort liability under a private facts claim. Summary judgment thus was proper as to both plaintiffs on the private facts cause of action.

As to intrusion, the Court of Appeal correctly found triable issues exist as to whether defendants invaded plaintiffs’ privacy by accompanying plaintiffs in the helicopter. Contrary to the holding below, we also hold triable issues exist as to whether defendants tortiously intruded by listening to Ruth’s confidential conversations with Nurse Carnahan at the rescue scene without Ruth’s consent. Moreover, we hold defendants had no constitutional privilege so to intrude on plaintiffs’ seclusion and private communications.

*214Discussion

Influenced by Dean Prosser’s analysis of the tort actions for invasion of privacy (Prosser, Privacy (1960) 48 Cal.L.Rev. 381) and the exposition of a similar analysis in the Restatement Second of Torts sections 652A-652E (further references to the Restatement are to the Restatement Second of Torts), California courts have recognized both of the privacy causes of action pleaded by plaintiffs here: (1) public disclosure of private facts, and (2) intrusion into private places, conversations or other matters. (See Forsher v. Bugliosi (1980) 26 Cal.3d 792, 808 [163 Cal.Rptr. 628, 608 P.2d 716]; Kapellas v. Kofman (1969) 1 Cal.3d 20, 35-36 [81 Cal.Rptr. 360, 459 P.2d 912]; Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1482 [232 Cal.Rptr. 668, 69 A.L.R.4th 1027]; Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 126 [188 Cal.Rptr. 762] {Diaz).)4

We shall review the elements of each privacy tort, as well as the common law and constitutional privilege of the press as to each, and shall apply in succession this law to the facts pertinent to each cause of action.

I. Publication of Private Facts

The claim that a publication has given unwanted publicity to allegedly private aspects of a person’s life is one of the more commonly litigated and well-defined areas of privacy law. In Diaz, supra, 139 Cal.App.3d at page 126, the appellate court accurately discerned the following elements of the public disclosure tort: “(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.” (See Forsher v. Bugliosi, supra, 26 Cal.3d at pp. 808-809; Gill v. Hearst Publishing Co. (1953) 40 Cal.2d 224, 228-231 [253 P.2d 441]; Carlisle v. Fawcett Publications, Inc. (1962) 201 Cal.App.2d 733, 744-748 [20 Cal.Rptr. 405].) That formulation does not differ significantly from the Restatement’s, which provides that “[o]ne who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that ftO (a) would be highly offensive to a reasonable person, and [^] (b) is not of legitimate concern to the public.” (Rest.2d Torts, § 652D.)

The element critical to this case is the presence or absence of legitimate public interest, i.e., newsworthiness, in the facts disclosed. After reviewing the decisional law regarding newsworthiness, we conclude, inter *215alia, that lack of newsworthiness is an element of the “private facts” tort, making newsworthiness a complete bar to common law liability. We further conclude that the analysis of newsworthiness inevitably involves accommodating conflicting interests in personal privacy and in press freedom as guaranteed by the First Amendment to the United States Constitution, and that in the circumstances of this case—where the facts disclosed about a private person involuntarily caught up in events of public interest bear a logical relationship to the newsworthy subject of the broadcast and are not intrusive in great disproportion to their relevance—the broadcast was of legitimate public concern, barring liability under the private facts tort.

The Diaz formulation, like the Restatement’s, includes as a tort element that the matter published is not of legitimate public concern. Diaz thus expressly makes the lack of newsworthiness part of the plaintiff’s case in a private facts action. (See also Diaz, supra, 139 Cal.App.3d at pp. 128-130 [plaintiff bears burden of proving published matter was not newsworthy].) Our own decisions are consistent, if less explicit, on this point. (See Forsher v. Bugliosi, supra, 26 Cal.3d at p. 809 [The defendant’s First Amendment right to disseminate information to the public must be considered “[i]n determining whether a cause of action [for publication of private facts] has been stated . . . .”]; Gill v. Curtis Publishing Co. (1953) 38 Cal.2d 273, 278 [239 P.2d 630] [Public interest in the dissemination of news and information must be balanced against the privacy right “in defining the boundaries of the right.”].) The Diaz approach is consistent with the tort’s historical development, in which defining an actionable invasion pf privacy has generally been understood to require balancing privacy interests against the press’s right to report, and the community’s interest in receiving, news and information. (See Brandeis, supra, 4 Harv. L.Rev. at p. 214; Melvin v. Reid, supra, 112 Cal.App. at p. 290; Sidis v. F-R Publishing Corporation (2d Cir. 1940) 113 F.2d 806, 809; Barbers/. Time, Inc. (1942) 348 Mo. 1199, 1206 [159 S.W.2d 291]; Carlisle v. Fawcett Publications, Inc., supra, 201 Cal.App.2d at p. 745; Gill v. Curtis Publishing Co., supra, 38 Cal.2d at p. 277; Briscoe v. Reader’s Digest Association, Inc., supra, 4 Cal.3d at p. 534.)

We therefore agree with defendants that under California common law the dissemination of truthful, newsworthy material is not actionable as a publication of private facts. (Kapellas v. Kofrnan, supra, 1 Cal.3d at pp. 35-36; Diaz, supra, 139 Cal.App.3d at p. 126; Rest.2d Torts, § 652D.) If the contents of a broadcast or publication are of legitimate public concern, the plaintiff cannot establish a necessary element of the tort action, the lack of newsworthiness. To so state, however, is merely to begin the necessary legal inquiry, not to end it. It is in the determination of newsworthiness—in deciding whether published or broadcast material is of legitimate public *216concern—that courts must struggle most directly to accommodate the conflicting interests of individual privacy and press freedom.

Although we speak of the lack of newsworthiness as an element of the private facts tort, newsworthiness is at the same time a constitutional defense to, or privilege against, liability for publication of truthful information. (Forsher v. Bugliosi, supra, 26 Cal.3d at p. 809; Gilbert v. Medical Economics Co. (10th Cir. 1981) 665 F.2d 305, 307-308; Vassiliades v. Garfinckel’s Brooks Bros. (D.C. 1985) 492 A.2d 580, 589.) Indeed, the danger of interference with constitutionally protected press freedom has been and remains an ever-present consideration for courts and commentators struggling to set the tort’s parameters, and the requirements of tort law and the Constitution have generally been assumed to be congruent. (See Rest.2d Torts, § 652D, com. d, p. 388 [newsworthiness standard developed in common law but now expresses constitutional limit as well]; Virgil v. Time, Inc. (9th Cir. 1975) 527 F.2d 1122, 1128-1130 [accepting Restatement test of newsworthiness as constitutional standard]; Ross v. Midwest Communications, Inc. (5th Cir. 1989) 870 F.2d 271, 273 [Stating of Texas law, which follows the Restatement, that “[i]n the ‘newsworthiness’ line of argument... the state law and constitutional tests are the same.”].) Little is to be gained, therefore, in attempting to keep rigorously separate the tort and constitutional issues as regards newsworthiness, and we have not attempted to do so here. Tort liability, obviously, can extend no further than the First Amendment allows; conversely, we see no reason or authority for fashioning the newsworthiness element of the private facts tort to preclude liability where the Constitution would allow it.

Delineating the exact contours of the constitutional privilege of the press in publication of private facts is, however, particularly problematic, because this privilege has not received extensive attention from the United States Supreme Court. The high court has considered the issue in only one case involving the common law public disclosure tort, Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469 [95 S.Ct. 1029, 43 L.Ed.2d 328] (Cox Broadcasting), and its holding in that case was deliberately and explicitly narrow. In Cox Broadcasting, a criminal court clerk, during a recess in court proceedings relating to a rape-murder case, allowed a television reporter to see the indictment, which contained the name of the victim. The television station broadcast an account of the court proceedings, using the victim’s name; the victim’s father alleged the broadcast to be a tortious publication of private facts. (Id. at pp. 471-474 [95 S.Ct. at pp. 1034-1035].) The Georgia Supreme Court, relying on a Georgia statute prohibiting publication or broadcast of a rape victim’s identity, held the broadcast of the victim’s name was not privileged as newsworthy; the court viewed the statute as showing that the *217victim’s identity was not a matter of legitimate public concern. The state court further held the statute did not itself infringe on the station’s First Amendment rights. (Id. at p. 475 [95 S.Ct. at p. 1035].)

The federal high court reversed, but—recognizing the important interests on both sides of the newsworthiness question—proceeded cautiously and on limited grounds. “Rather than address the broader question of whether truthful publications may ever be subjected to civil or criminal liability consistently with the First and Fourteenth Amendments, or to put it another way, whether the State may ever define and protect an area of privacy free from unwanted publicity in the press, it is appropriate to focus on the narrower interface between press and privacy that this case presents, namely, whether the State may impose sanctions on the accurate publication of the name of a rape victim obtained from public records—more specifically, from judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection. We are convinced that the State may not do so.” (Cox Broadcasting, supra, 420 U.S. at p. 491 [95 S.Ct. at p. 1044].) For this holding the court relied on the “responsibility of the press to report the operations of government” (id. at p. 492 [95 S.Ct. at p. 1045]), including judicial proceedings regarding crimes, and on the premise that “[b]y placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served” (id. at p. 495 [95 S.Ct. at p. 1046]).

A more recent case cited by defendants, The Florida Star v. B. J. F. (1989) 491 U.S. 524 [109 S.Ct. 2603, 105 L.Ed.2d 443] (Florida Star), reached a. similar conclusion with regard to a Florida statute that, like the Georgia law in Cox Broadcasting, criminally punished the publication of a sexual assault victim’s name. In Florida Star, however, the plaintiff’s civil action was not pled as the common law tort for publication of private facts, but rather as a negligence action (with the criminal statute used as predicate for application of the negligence per se doctrine), a distinction the high court relied upon in holding liability to be constitutionally barred. (Id. at p. 539 [109 S.Ct. at p. 2612].) Here, again, the high court chose to move cautiously, “relying on limited principles that sweep no more broadly than the appropriate context of the instant case.” (Id. at p. 533 [109 S.Ct. at p. 2609].) The limited principle relied upon in Florida Star was that “ ‘[I]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.’ ” (Ibid.) Like Cox Broadcasting, the Florida Star decision provides little general guidance as to what is, and is not, “a matter of public significance”—what is newsworthy, in other words—or as to when, if ever, the protection of private facts *218against public disclosure should be considered a sufficiently important state interest to justify civil liability pursuant to the common law tort. As in Cox Broadcasting, moreover, the Florida Star new_spaper had obtained the victim’s name from a public records source, in this case a police report made available to the press. The high court’s holding that publication was constitutionally protected again rested in large part on the fact the government had, by making the information available to the press, impliedly determined its dissemination was in the public interest, and could not then punish a newspaper for “rely[ing] on the government’s implied representations of the lawfulness of dissemination.” (Florida Star, supra, 491 U.S. at p. 536 [109 S.Ct. at p. 2610].)

One federal court has observed that, despite the limited scope of their holdings, “the implications of [Cox Broadcasting and Florida Star] for the branch of the right of privacy that limits the publication of private facts are profound .... The Court must believe that the First Amendment greatly circumscribes the right even of a private figure to obtain damages for the publication of newsworthy facts about him, even when they are facts of a kind that people want very much to conceal.” (Haynes v. Alfred A. Knopf, Inc. (7th Cir. 1993) 8 F.3d 1222, 1232.) We agree the high court’s decisions are instructive on the strength of First Amendment protection for truthful publication of private facts. More particularly, they establish that truthful reporting on current judicial proceedings, using material drawn from public records, is generally within the scope of constitutional protection. The decisions do not, however, enunciate a general test of newsworthiness applicable to other factual circumstances or provide a broad theoretical basis for discovery of such a general constitutional standard. (See Woito & McNulty, The Privacy Disclosure Tort and the First Amendment: Should the Community Decide Newsworthiness? (1978) 64 Iowa L.Rev. 185, 199-202.)

Newsworthiness—constitutional or common law—is also difficult to define because it may be used as either a descriptive or a normative term. “Is the term ‘newsworthy’ a descriptive predicate, intended to refer to the fact there is widespread public interest? Or is it a value predicate, intended to indicate that the publication is a meritorious contribution and that the public’s interest is praiseworthy?” (Comment, The Right of Privacy: Normative-Descriptive Confusion in the Defense of Newsworthiness (1963) 30 U. Chi. L.Rev. 722, 725.) A position at either extreme has unpalatable consequences. If “newsworthiness” is completely descriptive—if all coverage that sells papers or boosts ratings is deemed newsworthy—it would seem to swallow the publication of private facts tort, for “it would be difficult to suppose that publishers were in the habit of reporting occurrences of little interest.” (Id. at p. 734.) At the other extreme, if newsworthiness is viewed *219as a purely normative concept, the courts could become to an unacceptable degree editors of the news and self-appointed guardians of public taste.

The difficulty of finding a workable standard in the middle ground between the extremes of normative and descriptive analysis, and the variety of factual circumstances in which the issue has been presented, have led to considerable variation in judicial descriptions of the newsworthiness concept. As one commentator has noted, the newsworthiness test “bears an enormous social pressure, and it is not surprising to find that the common law is deeply confused and ambivalent about its application.” (Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort (1989) 77 Cal.L.Rev. 957, 1007.) Without attempting an exhaustive survey, and with particular focus on California decisions, we review some of these attempts below.

In the first California privacy case, Melvin v. Reid, supra, 112 Cal.App. 285, the defendants, using the plaintiff’s true maiden name, had produced and exhibited a motion picture based on events of the plaintiff’s life, including her having been a prostitute many years earlier. (Id. at pp. 286-287.) The appellate court held the use of the plaintiff’s true name “was unnecessary and indelicate, and a willful and wanton disregard of that charity which should actuate us in our social intercourse.” (Id. at p. 291.) In short, such use was “not justified by any standard of morals or ethics known to us.” (Id. at p. 292.)

This court took a similar, albeit less overtly moralistic, approach in Gill v. Curtis Publishing Co., supra, 38 Cal.2d 273 (Gill v. Curtis), involving a Ladies Home Journal article entitled Love that used a photograph of the plaintiffs embracing to illustrate the “wrong” kind of love, “founded upon 100 per cent sex attraction.” (Id. at p. 275.) As the Court of Appeal had done in Melvin v. Reid, supra, 112 Cal.App. 285, we attempted to distinguish a disclosure of private facts that was closely connected to the newsworthiness of the publication from one that superfluously exposed the subject’s private life to public view. Assuming the article’s contents “to be within the range of public interest in dissemination of news, information or education,” still “the public interest did not require the use of any particular person’s likeness nor that of plaintiffs without their consent.” (Gill v. Curtis, supra, at p. 279.) Although we therefore did not need to decide on a general standard of newsworthiness, we noted that “[fjactors deserving consideration may include the medium of publication, the extent of the use, the public interest served by the publication, and the seriousness of the interference with the person’s privacy.” (Id. at pp. 278-279.)

A year later, without explicitly overruling Gill v. Curtis, we reached a seemingly inconsistent conclusion in another case involving the same publication. (Gill v. Hearst Publishing Co., supra, 40 Cal.2d 224 (Gill v. *220Hearst).) We held no action for invasion of privacy would lie solely for publication of the photograph of the plaintiffs embracing. The photograph itself, we reasoned, enjoyed some measure of constitutional protection despite its slight or nonexistent informational value. “Apparently the picture has no particular news value but is designed to serve the function of entertainment as a matter of legitimate public interest. [Citation.] However, the constitutional guarantees of freedom of expression apply with equal force to the publication whether it be a news report or an entertainment feature . . . .” (Id. at p. 229.)5 The author of Gill v. Curtis dissented from this portion of Gill v. Hearst, arguing, “it should be quite obvious that there is no news or educational value whatsoever in the photograph alone. It depicts two persons (plaintiffs) in an amorous pose. . . . While some remote news significance might be attached to persons in such a pose on the theory that the public likes and is entitled to see persons in such a pose, there is no reason why the publisher need invade the privacy of John and Jane Doe for his purpose. He can employ models for that purpose and the portion of the public interested will never know the difference but its maudlin curiosity will be appeased.” (Gill v. Hearst, supra, 40 Cal.2d at p. 232 (cone. & dis. opn. of Carter, J.).)

This court next addressed the question in Kapellas v. Koftnan, supra, 1 Cal.3d 20 (Kapellas), involving a newspaper editorial that allegedly violated the privacy rights of the children of a woman running for public office by revealing certain juvenile offenses and peccadilloes for which the children had been arrested or detained. Drawing from academic comment and the two Gill decisions, we attempted a general analysis involving the balancing of three factors: “In determining whether a particular incident is ‘newsworthy’ and thus whether the privilege shields its truthful publication from liability, the courts consider a variety of factors, including the social value of the facts published, the depth of the article’s intrusion into ostensibly private affairs, and the extent to which the party voluntarily acceded to a position of public notoriety.” (Kapellas, supra, at p. 36.) Applying these factors, we articulated a general rule favoring dissemination of relevant information regarding candidates for public office, including at least some information about their families: “Generally, courts will be most reluctant to impede the free flow of any truthful information that may be relevant to a candidate’s qualifications for office. Although the conduct of a candidate’s children in many cases may not appear particularly relevant to his qualifications for office, normally the public should be permitted to determine the importance or relevance of the *221reported facts for itself. If the publication does not proceed widely beyond the bounds of propriety and reason in disclosing facts about those closely related to an aspirant for public office, the compelling public interest in the unfettered dissemination of information will outweigh society’s interest in preserving such individuals’ rights to privacy.” (Id. at pp. 37-38, fn. omitted.) Following the articulated principle, we held the information disclosed, if true, was absolutely privileged. (Id. at p. 39.)

We employed the Kapellas factors in Briscoe v. Reader’s Digest Association, Inc., supra, 4 Cal.3d 529 (Briscoe). A magazine article on truck hijacking included a description of such a crime the plaintiff had committed 11 years earlier, using the plaintiff’s true name. Conceding that “reports of the facts of past crimes are newsworthy” (id. at p. 537), we nonetheless concluded a jury could reasonably find the plaintiff’s identity as a former hijacker to be nonnews worthy. The identification of a rehabilitated person as a former criminal was, under the circumstances, of “minimal social value” (id. at p. 541), would tend to interfere with the state’s interest in rehabilitating criminals and returning them to society, and could be regarded as a serious intrusion on private matters (id. at p. 542).6

In Briscoe, while employing Kapellas’s analysis of competing interests, we also recognized the strong constitutional policy against fact-dependent balancing of First Amendment rights against other interests. “Because the categories with which we deal—private and public, newsworthy and non-newsworthy—have no clear profile, there is a temptation to balance interests in ad hoc fashion in each case. Yet history teaches us that such a process leads too often to discounting society’s stake in First Amendment rights. [Citation.] We therefore strive for as much predictability as possible within our system of case-by-case adjudication, lest we unwittingly chill First Amendment freedoms.” (Briscoe, supra, 4 Cal.3d at pp. 542-543, fn. 18.) We believed, however, the danger of chilling future expression by our holding in Briscoe was slight because the facts of the case clearly negated protection. *222(Ibid.) Our holding of possible liability in that case, moreover, was expressly limited to narrow circumstances to be established at trial: that the plaintiff, having been punished for his past crime, was now “a rehabilitated member of society”; that identification of him as a former criminal was not only highly offensive but “injurious” to his efforts at leading an ordinary law-abiding life; that the publication was made with reckless disregard for its offensiveness; and that the defendant had no “independent justification” for printing plaintiff’s identity. (Id. at p. 543.)

In the most recent of this court’s decisions on publication of private facts, we applied the same general analysis of newsworthiness as in Briscoe but distinguished that case on its facts. (Forsher v. Bugliosi, supra, 26 Cal.3d at pp. 809-813 (Forsher).) We held the defendant’s book, Helter-Skelter, did not invade the plaintiff’s privacy by mentioning his name in connection with the disappearance of an attorney who had represented a defendant in the highly publicized Tate-LaBianca killings. Briscoe, we observed, was “an exception to the more general .rule that ‘once a man has become a public figure, or news, he remains a matter of legitimate recall to the public mind to the end of his days.’ ” (Forsher, supra, at p. 811.) As the exceptional reasons for protecting Briscoe’s identity did not apply to Forsher, we concluded the identification of Forsher in connection with the death of an attorney formerly involved in the case was of continuing public concern at the time of publication. (Id. at p. 813.)

Our prior decisions have not explicitly addressed the type of privacy invasion alleged in this case: the broadcast of embarrassing pictures and speech of a person who, while generally not a public figure, has become involuntarily involved in an event or activity of legitimate public concern. We nonetheless draw guidance from those decisions, in that they articulate the competing interests to be balanced. First, the analysis of newsworthiness does involve courts to some degree in a normative assessment of the “social value” of a publication. (Kapellas, supra, 1 Cal.3d at p. 36.) All material that might attract readers or viewers is not, simply by virtue of its attractiveness, of legitimate public interest. Second, the evaluation of newsworthiness depends on the degree of intrusion and the extent to which the plaintiff played an important role in public events (ibid.), and thus on a comparison between the information revealed and the nature of the activity or event that brought the plaintiff to public attention. “Some reasonable proportion is . . . to be maintained between the events or activity that makes the individual a public figure and the private facts to which publicity is given. Revelations that may properly be made concerning a murderer or the President of the United States would not be privileged if they were to be made concerning *223one who is merely injured in an automobile accident.” (Rest.2d Torts, § 652D, com. h, p. 391.)7

Courts balancing these interests in cases similar to this have recognized that, when a person is involuntarily involved in a newsworthy incident, not all aspects of the person’s life, and not everything the person says or does, is thereby rendered newsworthy. “Most persons are connected with some activity, vocational or avocational, as to which the public can be said as a matter of law to have a legitimate interest or curiosity. To hold as a matter of law that private facts as to such persons are also within the area of legitimate public interest could indirectly expose everyone’s private life to public view.” {Virgil v. Time, Inc., supra, 527 F.2d at p. 1131; accord, Gilbert v. Medical Economics Co., supra, 665 F.2d at p. 308 {Gilbert).) This principle is illustrated in the decisions holding that, while a particular event was newsworthy, identification of the plaintiff as the person involved, or use of the plaintiff’s identifiable image, added nothing of significance to the story and was therefore an unnecessary invasion of privacy. (See Briscoe, supra, 4 Cal.3d at p. 541 [identification of plaintiff as former criminal]; Gill v. Curtis, supra, 38 Cal.2d at p. 279 [use of plaintiffs’ photograph to illustrate article on love]; Melvin v. Reid, supra, 112 Cal.App. at pp. 291-292 [identification of plaintiff as former prostitute]; Barber v. Time, Inc., supra, 348 Mo. at pp. 1207-1208 [159 S.W.2d at pp. 295-296] [use of plaintiff’s name and photograph in article about her unusual medical condition]; Vassiliades v. Garftnckel’s Brooks Bros., supra, 492 A.2d at pp. 589-590 [use of plaintiff’s photograph to illustrate presentations on cosmetic surgery].) For the same reason, a college student’s candidacy for president of the student body did not render newsworthy a newspaper’s revelation that the student was a transsexual, where the court could find “little if any connection between the information disclosed and [the student’s] fitness for office.” {Diaz, supra, 139 Cal.App.3d at p. 134.) Similarly, a mother’s private words over the body of her slain son as it lay in a hospital room were held nonriewsworthy despite undisputed legitimate public interest in the subjects of gang violence and murder. {Green v. Chicago Tribune Co. (1996) 286 Ill.App.3d 1 [221 Ill.Dec. 342, 675 N.E.2d 249, 255-256].)

Consistent with the above, courts have generally protected the privacy of otherwise private individuals involved in events of public interest “by *224requiring that a logical nexus exist between the complaining individual and the matter of legitimate public interest.” (Campbell v. Seabury Press (5th Cir. 1980) 614 F.2d 395, 397.) The contents of the publication or broadcast are protected only if they have “some substantial relevance to a matter of legitimate public interest.” (Gilbert, supra, 665 F.2d at p. 308.) Thus, recent decisions have generally tested newsworthiness with regard to such individuals by assessing the logical relationship or nexus, or the lack thereof, between the events or activities that brought the person into the public eye and the particular facts disclosed. These decisions have used a number of similar or equivalent phrases to describe the necessary relationship. (See Cinel v. Connick (5th Cir. 1994) 15 F.3d 1338, 1346 [“substantially related”]; Ross v. Midwest Communications, Inc., supra, 870 F.2d at p. 274 [5th Cir.: “logical nexus”]; Campbell v. Seabury Press, supra, 614 F.2d at p. 397 [5th Cir.: “logical nexus”]; Gilbert, supra, 665 F.2d at p. 308 [10th Cir.: “substantial relevance”]; Lee v. Calhoun (10th Cir. 1991) 948 F.2d 1162, 1165-1166 [following Gilbert]’, Haynes v. Alfred A. Knopf, Inc., supra, 8 F.3d at p. 1233 [facts “germane” to story]; Vassiliades v. GarfinckeVs Brooks Bros., supra, 492 A.2d at p. 590 [“logical nexus”].) This approach accords with our own prior decisions, in that it balances the public’s right to know against the plaintiff’s privacy interest by drawing a protective line at the point the material revealed ceases to have any substantial connection to the subject matter of the newsworthy report. (Cf. Kapellas, supra, 1 Cal.3d at p. 37 [in context of political candidacy, truthful information is generally protected if it “may be relevant” to qualifications for office].) This approach also echoes the Restatement commentators’ widely quoted and cited view that legitimate public interest does not include “a morbid and sensational prying into private lives for its own sake . . . .” (Rest.2d Torts, § 652D, com. h, p. 391, italics added; see, e.g., Sipple v. Chronicle Publishing Co. (1984) 154 Cal.App.3d 1040, 1048-1049 [201 Cal.Rptr. 665]; Virgil v. Time, Inc., supra, 527 F.2d at p. 1129; Gilbert, supra, 665 F.2d at pp. 307-308; see also Haynes v. Alfred A. Knopf, Inc., supra, 8 F.3d at p. 1232 [private facts not newsworthy “when the community has no interest in them beyond the voyeuristic thrill of penetrating the wall of privacy that surrounds a stranger”].)

An analysis measuring newsworthiness of facts about an otherwise private person involuntarily involved in an event of public interest by their relevance to a newsworthy subject matter incorporates considerable deference to reporters and editors, avoiding the likelihood of unconstitutional interference with the freedom of the press to report truthfully on matters of *225legitimate public interest.8 In general, it is not for a court or jury to say how a particular story is best covered. The constitutional privilege to publish truthful material “ceases to operate only when an editor abuses his broad discretion to publish matters that are of legitimate public interest.” (Gilbert, supra, 665 F.2d at p. 308.) .By confining our interference to extreme cases, the courts “avoidQ unduly limiting ... the exercise of effective editorial judgment.” ('Virgil v. Time, Inc., supra, 527 F.2d at p. 1129.) Nor is newsworthiness governed by the tastes or limited interests of an individual judge or juror; a publication is newsworthy if some reasonable members of the community could entertain a legitimate interest in it. Our analysis thus does not purport to distinguish among the various legitimate purposes that may be served by truthful publications and broadcasts. As we said in Gill v. Hearst, supra, 40 Cal.2d at page 229, “the constitutional guarantees of freedom of expression apply with equal force to the publication whether it be a news report or an entertainment feature . . . .” Thus, newsworthiness is not limited to “news” in the narrow sense of reports of current events. “It extends also to the use of names, likenesses or facts in giving information to the public for purposes of education, amusement or enlightenment, when the public may reasonably be expected to have a legitimate interest in what is published.” (Rest.2d Torts, § 652D, com. j, p. 393; accord, Gilbert, supra, 665 F.2d at p. 308; Virgil v. Time, Inc., supra, 527 F.2d at p. 1129; see also Carlisle v. Fawcett Publications, Inc., supra, 201 Cal.App.2d at p. 746 [matters of legitimate public interest include, for example, “the reproduction of past events, travelogues and biographies”]; Vassiliades v. Garfinckel’s Brooks Bros., supra, 492 A.2d at p. 589 [includes “ ‘information concerning interesting phases of human activity’ ”].)

Finally, an analysis focusing on relevance allows courts and juries to decide most cases involving persons involuntarily involved in events of public interest without “balancing] interests in ad hoc fashion in each case” (Briscoe, supra, 4 Cal.3d at p. 542, fn. 18). The articulation of standards that do not require “ad hoc resolution of the competing interest in each . . . *226case” (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 343 [94 S.Ct. 2997, 3009, 41 L.Ed.2d 789]) is favored in areas affecting First Amendment rights, because the relative predictability of results reached under such standards minimizes the inadvertent chilling of protected speech, and because standards that can be applied objectively provide a stronger shield against the unconstitutional punishment of unpopular speech. (Ibid.; Nimmer, The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy (1968) 56 Cal.L.Rev. 935, 938-945 (hereafter Nimmer); see also Reno v. American Civil Liberties Union (1997) 521 U.S. 844 [117 S.Ct. 2329, 2341, 2344-2345, 138 L.Ed.2d 874] [Internet speech prohibitions employing undefined term “indecent” and appealing to “community standards” of what is “patently offensive” are, absent further narrowing of prohibitions, unconstitutionally vague and uncertain.].)

On the other hand, no mode of analyzing newsworthiness can be applied mechanically or without consideration of its proper boundaries. To observe that the newsworthiness of private facts about a person involuntarily thrust into the public eye depends, in the ordinary case, on the existence of a logical nexus between the newsworthy event or activity and the facts revealed is not to deny that the balance of free press and privacy interests may require a different conclusion when the intrusiveness of the revelation is greatly disproportionate to its relevance. Intensely personal or intimate revelations might not, in a given case, be considered newsworthy, especially where they bear only slight relevance to a topic of legitimate public concern. (See Kapellas, supra, 1 Cal.3d at pp. 37-38 [public interest in free flow of information will outweigh interest in individual privacy “[i]f the publication does not proceed widely beyond the bounds of propriety and reason in disclosing facts about those closely related to an aspirant for public office . . .”]; Haynes v. Alfred A. Knopf, Inc., supra, 8 F.3d at pp. 1234-1235 [although personal facts revealed in book at issue were newsworthy because germane to the book’s subject matter, that protection may not extend to publication of “intimate physical details the publicizing of which would be not merely embarrassing and painful but deeply shocking to the average person”].)9

A few words are in order at this point regarding the right of privacy secured by article I, section 1 of the California Constitution. The Court of *227Appeal, citing Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at pages 37-38 (Hill), equated the judicial balancing undertaken in delineation of the common law right of privacy to the balancing of interests this court has prescribed for evaluating claims raised under our state’s constitutional right of privacy. Defendants attack the Court of Appeal’s adoption of Hill’s balancing test in the common law tort context, arguing that under the federal Constitution newsworthiness is a complete bar to liability, rather than merely an interest to be balanced against private or state-protected interests.

We agree with defendants that the publication of truthful, lawfully obtained material of legitimate public concern is constitutionally privileged and does not create liability under the private facts tort. As discussed above, however, a certain amount of interest-balancing does occur in deciding whether material is of legitimate public concern, or in formulating rules for that decision. To that extent, the Court of Appeal’s analogy to Hill was not in error.

In Hill, we held, inter alia, that article I, section 1 of the California Constitution protects Californians against invasions of privacy by nongovernmental as well as governmental parties. (Hill, supra, 7 Cal.4th at pp. 15-20.) Decisions concerning the tort actions for invasion of privacy have, in addition, sometimes linked the plaintiffs’ protected interest to that constitutional provision. (See, e.g., Miller v. National Broadcasting Co., supra, 187 Cal.App.3d at pp. 1490-1491 [intrusion plaintiff’s interest protected by constitutional privacy provision]; Melvin v. Reid, supra, 112 Cal.App. at p. 291 [in private facts case predating addition of “privacy” to article I, section 1, plaintiff deemed protected by that section’s guarantee of right to pursue and obtain happiness].) The Hill court itself sought to “draw upon the one hundred years of legal experience surrounding the term ‘privacy’ ” in formulating the correct analysis of claims brought under the state Constitution. (Hill, supra, 7 Cal.4th at p. 27.) Thus, these two sources of protection for privacy—the common law and the state Constitution—are not unrelated. Nothing in Hill or our more recent constitutional privacy cases (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307 [66 Cal.Rptr.2d 210, 940 P.2d 797]; Loder v. City of Glendale (1997) 14 Cal.4th 846 [59 Cal.Rptr.2d 696, 927 P.2d 1200]), however, suggests that the conceptual framework developed for resolving privacy claims under the California Constitution was intended to supplant the common law tort analysis or preclude its independent development. Nor did we have occasion in those cases to address the analytical means by which a state-created privacy right, *228whether of constitutional or common law origin, may be accommodated to conflicting and superior demands of federal constitutional interests, as for example those protected by the First Amendment.

Turning now to the case at bar, we consider whether the possibly private facts complained of here—broadly speaking, Ruth’s appearance and words during the rescue and evacuation—were of legitimate public interest. If so, summary judgment was properly entered. “[Bjecause unnecessarily protracted litigation would have a chilling effect upon the exercise of First Amendment rights, speedy resolution of cases involving free speech is desirable. [Citation.] Therefore, summary judgment is a favored remedy [in such cases] . . . .” (Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 685 [150 Cal.Rptr. 258, 586 P.2d 572]; see also Haynes v. Alfred A. Knopf, Inc., supra, 8 F.3d at p. 1234 [Affirming summary judgment for defendants in private facts case: “To any suggestion that the outer bounds of liability should be left to a jury to decide we reply that in cases involving the rights protected by the speech and press clauses of the First Amendment the courts insist on judicial control of the jury.”].) Nonetheless, the basic question raised on a defense motion for summary judgment, and on review of such judgment, is the same in a privacy action against media defendants as in other cases: Does the motion record demonstrate the existence of triable issues of fact, or was the defense entitled to judgment as a matter of law? (Code Civ. Proc., § 437c, subd. (c); Sipple v. Chronicle Publishing Co., supra, 54 Cal.App.3d at p. 1046.)

We agree at the outset with defendants that the subject matter of the broadcast as a whole was of legitimate public concern. Automobile accidents are by their nature of interest to that great portion of the public that travels frequently by automobile. The rescue and medical treatment of accident victims is also of legitimate concern to much of the public, involving as it does a critical service that any member of the public may someday need. The story of Ruth’s difficult extrication from the crushed car, the medical attention given her at the scene, and her evacuation by helicopter was of particular interest because it highlighted some of the challenges facing emergency workers dealing with serious accidents.

The more difficult question is whether Ruth’s appearance and words as she was extricated from the overturned car, placed in the helicopter and transported to the hospital were of legitimate public concern. Pursuant to the analysis outlined earlier, we conclude the disputed material was newsworthy as a matter of law. One of the dramatic and interesting aspects of the story as a whole is its focus on flight nurse Carnahan, who appears to be in charge of communications with other emergency workers, the hospital base and Ruth, *229and who leads the medical assistance to Ruth at the scene. Her work is portrayed as demanding and important and as involving a measure of personal risk (e.g., in crawling under the car to aid Ruth despite warnings that gasoline may be dripping from the car).10 The broadcast segment makes apparent that this type of emergency care requires not only medical knowledge, concentration and courage, but an ability to talk and listen to severely traumatized patients. One of the challenges Carnahan faces in assisting Ruth is the confusion, pain and fear that Ruth understandably feels in the aftermath of the accident. For that reason the broadcast video depicting Ruth’s injured physical state (which was not luridly shown) and audio showing her disorientation and despair were substantially relevant to the segment’s newsworthy subject matter.

Plaintiffs argue that showing Ruth’s “intimate private, medical facts and her suffering was not necessary to enable the public to understand the significance of the accident or the rescue as a public event.” The standard, however, is not necessity. That the broadcast could have been edited to exclude some of Ruth’s words and images and still excite a minimum degree of viewer interest is not determinative. Nor is the possibility that the members of this or another court, or a jury, might find a differently edited broadcast more to their taste or even more interesting.. The courts do not, and constitutionally could not, sit as superior editors of the press. (Ross v. Midwest Communications, Inc., supra, 870 F.2d at p. 275 [“Exuberant judicial blue-penciling after-the-fact would blunt the quills of even the most honorable journalists.”]; Gilbert, supra, 665 F.2d at p. 308 [Liability for disclosure of private facts is limited “to the extreme case, thereby providing the breathing space needed by the press to properly exercise effective editorial judgment.”].)

The challenged material was thus substantially relevant to the newsworthy subject matter of the broadcast and did not constitute a “morbid and sensational prying into private lives for its own sake.” (Rest.2d Torts, § 652D, com. h, p. 391, italics added.) Nor can we say the broadcast material was so lurid and sensational in emotional tone, or so intensely personal in content, as to make its intrusiveness disproportionate to its relevance. Under these circumstances, the material was, as a matter of law, of legitimate public concern. Summary judgment was therefore properly entered against Ruth on *230her cause of action for publication of private facts.11 As to Wayne, he is glimpsed only fleetingly in the broadcast video and is never heard. The broadcast includes no images or information regarding him that could be offensive to a reasonable person of ordinary sensibilities. Summary judgment was therefore also proper on Wayne’s cause of action for publication of private facts.

One might argue that, while the contents of the broadcast were of legitimate interest in that they reflected on the nature and quality of emergency rescue services, the images and sounds that potentially allowed identification of Ruth as the accident victim were irrelevant and of no legitimate public interest in a broadcast that aired some months after the accident and had little or no value as “hot” news. (See Briscoe, supra, 4 Cal.Sd at p. 537 [While reports of the- facts of “long past” crimes are newsworthy, identification of the actor in such crimes “usually serves little independent public purpose.”].) We do not take that view. It is difficult to see how the subject broadcast could have been edited to avoid completely any possible identification without severely undercutting its legitimate descriptive and narrative impact. As broadcast, the segment included neither Ruth’s full name nor direct display of her face. She was nonetheless arguably identifiable by her first name (used in recorded dialogue), her voice, her general appearance and the recounted circumstances of the accident (which, as noted, had previously been published, with Ruth’s full name and city of residence, in a newspaper).12 In a video documentary of this type, however, the use of that degree of truthful detail would seem not only relevant, but essential to the narrative.

II. Intrusion

Of the four privacy torts identified by Prosser, the tort of intrusion into private places, conversations or matter is perhaps the one that best captures the common understanding of an “invasion of privacy.” It encompasses unconsented-to physical intrusion into the home, hospital room or *231other place the privacy of which is legally recognized, as well as unwarranted sensory intrusions such as eavesdropping, wiretapping, and visual or photographic spying. (See Rest.2d Torts, § 652B, com. b., pp. 378-379, and illustrations.) It is in the intrusion cases that invasion of privacy is most clearly seen as an affront to individual dignity. “[A] measure of personal isolation and personal control over the conditions of its abandonment is of the very essence of personal freedom and dignity, is part of what our culture means by these concepts. A man whose home may be entered at the will of another, whose conversations may be overheard at the will of another, whose marital and familial intimacies may be overseen at the will of another, is less of a man, has less human dignity, on that account. He who may intrude upon another at will is the master of the other and, in fact, intrusion is a primary weapon of the tyrant.” (Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser (1964) 39 N.Y.U. L.Rev. 962, 973-974, fn. omitted.)

Despite its conceptual centrality, the intrusion tort has received less judicial attention than the private facts tort, and its parameters are less clearly defined. The leading California decision is Miller v. National Broadcasting Co., supra, 187 Cal.App.3d 1463 {Miller). Miller, which like the present case involved a news organization’s videotaping the work of emergency medical personnel, adopted the Restatement’s formulation of the cause of action: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” (Rest.2d Torts, § 652B; Miller, supra, 187 Cal.App.3d at p. 1482.)

As stated in Miller and the Restatement, therefore, the action for intrusion has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person. We consider the elements in that order.

We ask first whether defendants “intentionally intrude[d], physically or otherwise, upon the solitude or seclusion of another,” that is, into a place or conversation private to Wayne or Ruth. (Rest.2d Torts, § 652B; Miller, supra, 187 Cal.App.3d at p. 1482.) “[Tjhere is no liability for the examination of a public record concerning the plaintiff, . . . [or] for observing him or even taking his photograph while he is walking on the public highway . . . .” (Rest.2d Torts, § 652B, com. c., pp. 379-380; see, e.g., Aisenson v. American Broadcasting Co. (1990) 220 Cal.App.3d 146, 162-163 [269 Cal.Rptr. 379] [where judge who was subject of news story was filmed from *232public street as he walked from his home to his car, any invasion of privacy was “extremely de minimis”]; see also 1 McCarthy, The Rights of Publicity and Privacy (1997) § 5.10[A][2], pp. 5-111 to 5-113 [collecting cases].) To prove actionable intrusion, the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff. The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source. (Rest.2d Torts, § 652B, com. c., p. 379; see, e.g., PETA v. Bobby Berosini, Ltd. (1995) 111 Nev. 615 [895 P.2d 1269, 1280-1281] [plaintiff animal trainer had no expectation of seclusion or solitude in backstage preparation area]; Frankel v. Warwick Hotel (E.D.Pa. 1995) 881 F.Supp. 183, 188 [father’s meddling in son’s marriage not intrusion where there was no “physical or sensory penetration of a person’s zone of seclusion”].)

Cameraman Cooke’s mere presence at the accident scene and filming of the events occurring there cannot be deemed either a physical or sensory intrusion on plaintiffs’ seclusion. Plaintiffs had no right of ownership or possession of the property where the rescue took place, nor any actual control of the premises. Nor could they have had a reasonable expectation that members of the media would be excluded or prevented from photographing the scene; for journalists to attend and record the scenes of accidents and rescues is in no way unusual or unexpected. (Cf. Pen. Code, §§ 409.5, subd. (d), 409.6, subd. (d) [exempting press representatives from certain emergency closure orders].)

Two aspects of defendants’ conduct, however, raise triable issues of intrusion on seclusion. First, a triable issue exists as to whether both plaintiffs had an objectively reasonable expectation of privacy in the interior of the rescue helicopter, which served as an ambulance. Although the attendance of reporters and photographers at the scene of an accident is to be expected, we are aware of no law or custom permitting the press to ride in ambulances or enter hospital rooms during treatment without the patient’s consent. (See Noble v. Sears, Roebuck & Co., supra, 33 Cal.App.3d at p. 660 [accepting, subject to proof at trial, intrusion plaintiff’s theory she had “an exclusive right of occupancy of her hospital room” as against investigator]; Miller, supra, 187 Cal.App.3d at pp. 1489-1490 [Rejecting intrusion defendant’s claim that plaintiff consented to media’s entry into home by calling paramedics: “One seeking emergency medical attention does not thereby ‘open the door’ for persons without any clearly identifiable and justifiable official reason who may wish to enter the premises where the medical aid is being administered.”].) Other than the two patients and Cooke, only three

*233people were present in the helicopter, all Mercy Air staff. As the Court of Appeal observed, “[i]t is neither the custom nor the habit of our society that any member of the public at large or its media representatives may hitch a ride in an ambulance and ogle as paramedics care for an injured stranger.” (See also Green v. Chicago Tribune Co., supra, 675 N.E.2d at p. 252 [hospital room not public place]; Barber v. Time, Inc., supra, 159 S.W.2d at p. 295 [“Certainly, if there is any right of privacy at all, it should include the right to obtain medical treatment at home or in a hospital . . . without personal publicity.”].)

Second, Ruth was entitled to a degree of privacy in her conversations with Carnahan and other medical rescuers at the accident scene, and in Carnahan’s conversations conveying medical information regarding Ruth to the hospital base. Cooke, perhaps, did not intrude into that zone of privacy merely by being present at a place where he could hear such conversations with unaided ears. But by placing a microphone on Carnahan’s person, amplifying and recording what she said and heard, defendants may have listened in on conversations the parties could reasonably have expected to be private.

The Court of Appeal held plaintiffs had no reasonable expectation of privacy at the accident scene itself because the scene was within the sight and hearing of members of the public. The summary judgment record, however, does not support the Court of Appeal’s conclusion; instead, it reflects, at the least, the existence of triable issues as to the privacy of certain conversations at the accident scene, as in the helicopter. The videotapes (broadcast and raw footage) show the rescue did not take place “on a heavily traveled highway,” as the Court of Appeal stated, but in a ditch many yards from and below the rural superhighway, which is raised somewhat at that point to bridge a nearby crossroad. From the tapes it appears unlikely the plaintiffs’ extrication from their car and medical treatment at the scene could have been observed by any persons who, in the lower court’s words, “passed by” on the roadway. Even more unlikely is that any passersby on the road could have heard Ruth’s conversation with Nurse Carnahan or the other rescuers.13

Whether Ruth expected her conversations with Nurse Carnahan or the other rescuers to remain private and whether any such expectation was *234reasonable are, on the state of the record before us, questions for the jury. We note, however, that several existing legal protections for communications could support the conclusion that Ruth possessed a reasonable expectation of privacy in her conversations with Nurse Carnahan and the other rescuers. A patient’s conversation with a provider of medical care in the course of treatment, including emergency treatment, carries a traditional and legally well-established expectation of privacy. (See Evid. Code, §§ 990-1007 [physician-patient privilege]; Civ. Code, §§ 56-56.37 [Confidentiality of Medical Information Act].)14 Moreover, California’s Invasion of Privacy Act (Pen. Code, §§ 630-637.6; see Ribas v. Clark (1985) 38 Cal.3d 355, 359 [212 Cal.Rptr. 143, 696 P.2d 637, 49 A.L.R.4th 417] (Ribas)) prohibits the recording of any “confidential communication” without the consent of all parties thereto. (Pen. Code, § 632, subd. (a).)

A confidential communication, for purposes of Penal Code section 632 (hereafter section 632), need not fall within an evidentiary privilege. Rather, the term includes “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering . . . or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” (§ 632, subd. (c).) The Invasion of Privacy Act, as we explained in Ribas, provides legal recognition of the individual’s reasonable expectation of privacy against unauthorized interception and recording of confidential conversations: “While one who imparts private information *235risks the betrayal of his confidence by the other party, a substantial distinction has been recognized between the secondhand repetition of the contents of a conversation and its simultaneous dissemination to an unannounced second auditor, whether that auditor be a person or a mechanical device. (Warden v. Kahn [(1979)] 99 Cal.App.3d 805, 813-814 [160 Cal.Rptr. 471].) [H] • • • [S]uch secret monitoring denies the speaker an important aspect of privacy of communication—the right to control the nature and extent of the firsthand dissemination of his statements.” {Ribas, supra, 38 Cal.3d at pp. 360-361.)15

Ruth’s claim, of course, does not require her to prove a statutory violation, only to prove that she had an objectively reasonable expectation of privacy in her conversations. Whether the circumstances of Ruth’s extrication and helicopter rescue would reasonably have indicated to defendants, or to their agent, Cooke, that Ruth would desire and expect her communications to Carnahan and the other rescuers to be confined to them alone, and therefore not to be electronically transmitted and recorded, is a triable issue of fact in this case. As observed earlier, whether anyone present (other than Cooke) was a mere observer, uninvolved in the rescue effort, is unclear from the summary judgment record. Also unclear is who, if anyone, could overhear conversations between Ruth and Carnahan, which were transmitted by a microphone on Carnahan’s person, amplified and recorded by defendants. We cannot say, as a matter of law, that Cooke should not have perceived he might be intruding on a confidential communication when he recorded a seriously injured patient’s conversations with medical personnel.16

*236We turn to the second element of the intrusion tort, offensiveness of the intrusion. In a widely followed passage, the Miller court explained that determining offensiveness requires consideration of all the circumstances of the intrusion, including its degree and setting and the intruder’s “motives and objectives.” (Miller, supra, 187 Cal.App.3d at pp. 1483-1484; cited, e.g., in Hill, supra, 7 Cal.4th at p. 26; Sacramento County Deputy Sheriffs’ Assn. v. County of Sacramento (1996) 51 Cal.App.4th 1468,. 1487 [59 Cal.Rptr.2d 834]; Magenis v. Fisher Broadcasting, Inc. (1990) 103 Or.App. 555 [798 P.2d 1106, 1110]; and PETA v. Bobby Berosini, Ltd., supra, 895 P.2d at p. 1282.) The Miller court concluded that reasonable people could regard the camera crew’s conduct in filming a man’s emergency medical treatment in his home, without seeking or obtaining his or his wife’s consent, as showing “a cavalier disregard for ordinary citizens’ rights of privacy” and, hence, as highly offensive. (Miller, supra, 187 Cal.App.3d at p. 1484.)

We agree with the Miller court that all the circumstances of an intrusion, including the motives or justification of the intruder, are pertinent to the offensiveness element.17 Motivation or justification becomes particularly important when the intrusion is by a member of the print or broadcast press in the pursuit of news material. Although, as will be discussed more fully later, the First Amendment does not immunize the press from liability for torts or crimes committed in an effort to gather news (Cohen v. Cowles Media Co. (1991) 501 U.S. 663, 669 [111 S.Ct. 2513, 2518, 115 L.Ed.2d 586]; Dietemann v. Time, Inc. (9th Cir. 1971) 449 F.2d 245, 249 (Dietemann)\ Miller, supra, 187 Cal.App.3d at p. 1492), the constitutional protection of the press does reflect the strong societal interest in effective and complete reporting of events, an interest that may—as a matter of tort law—justify an intrusion that would otherwise be considered offensive. While refusing to recognize a broad privilege in newsgathering against application of generally applicable laws, the United States Supreme Court has also observed that “without some protection for seeking out the news, freedom of the press could be eviscerated.” (Branzburg v. Hayes (1972) 408 U.S. 665, 681 [92 S.Ct. 2646, 2656, 33 L.Ed.2d 626]; see also Nicholson v. McClatchy Newspapers (1986) 177 Cal.App.3d 509, 519-520 [223 Cal.Rptr. 58].)

In deciding, therefore, whether a reporter’s alleged intrusion into private matters (i.e., physical space, conversation or data) is “offensive” and hence actionable as an invasion of privacy, courts must consider the extent to which the intrusion was, under the circumstances, justified by the legitimate *237motive of gathering the news. Information-collecting techniques that may be highly offensive when done for socially unprotected reasons—for purposes of harassment, blackmail or prurient curiosity, for example—may not be offensive to a reasonable person when employed by journalists in pursuit of a socially or politically important story. Thus, for example, “a continuous surveillance which is tortious when practiced by a creditor upon a debtor may not be tortious when practiced by media representatives in a situation where there is significant public interest [in discovery of the information sought].” (Hill, Defamation and Privacy Under the First Amendment (1976) 76 Colum. L.Rev. 1205, 1284, fn. omitted.)

The mere fact the intruder was in pursuit of a “story” does not, however, generally justify an otherwise offensive intrusion; offensiveness depends as well on the particular method of investigation used. At one extreme, “ ‘routine . . . reporting techniques,’ ” such as asking questions of people with information (“including those with confidential or restricted information”) could rarely, if ever, be deemed an actionable intrusion. (Nicholson v. McClatchy Newspapers, supra, 177 Cal.App.3d at p. 519; accord, Wolfson v. Lewis (E.D.Pa. 1996) 924 F.Supp. 1413, 1417.) At the other extreme, violation of well-established legal areas of physical or sensory privacy— trespass into a home or tapping a personal telephone line, for example— could rarely, if ever, be justified by a reporter’s need to get the story. Such acts would be deemed highly offensive even if the information sought was of weighty public concern; they would also be outside any protection the Constitution provides to newsgathering. (Cohen v. Cowles Media Co., supra, 501 U.S. at p. 669 [111 S.Ct. at p. 2518]; Dietemann, supra, 449 F.2d at p. 249.)

Between these extremes lie difficult cases, many involving the use of photographic and electronic recording equipment. Equipment such as hidden cameras and miniature cordless and directional microphones are powerful investigative tools for newsgathering, but may also be used in ways that severely threaten personal privacy. California tort law provides no bright line on this question; each case must be taken on its facts.

On this summary judgment record, we believe a jury could find defendants’ recording of Ruth’s communications to Carnahan and other rescuers, and filming in the air ambulance, to be “ ‘highly offensive to a reasonable person.’ ” (Miller, supra, 187 Cal.App.3d at p. 1482, italics omitted.) With regard to the depth of the intrusion (id. at p. 1483), a reasonable jury could find highly offensive the placement of a microphone on a medical rescuer in order to intercept what would otherwise be private conversations with an injured patient. In that setting, as defendants could and *238should have foreseen, the patient would not know her words were being recorded and would not have occasion to ask about, and object or consent to, recording. Defendants, it could reasonably be said, took calculated advantage of the patient’s “vulnerability and confusion.” {Id. at p. 1484.) Arguably, the last thing an injured accident victim should have to worry about while being pried from her wrecked car is that a television producer may be recording everything she says to medical personnel for the possible edification and entertainment of casual television viewers.

For much the same reason, a jury could reasonably regard entering and riding in an ambulance—whether on the ground or in the air—with two seriously injured patients to be an egregious intrusion on a place of expected seclusion. Again, the patients, at least in this case, were hardly in a position to keep careful watch on who was riding with them, or to inquire as to everyone’s business and consent or object to their presence. A jury could reasonably believe that fundamental respect for human dignity requires the patients’ anxious journey be taken only with those whose care is solely for them and out of sight of the prying eyes (or cameras) of others.

Nor can we say as a matter of law that defendants’ motive—to gather usable material for a potentially newsworthy story—necessarily privileged their intrusive conduct as a matter of common law tort liability. A reasonable jury could conclude the producers’ desire to get footage that would convey the “feel” of the event—the real sights and sounds of a difficult rescue—did not justify either placing a microphone on Nurse Carnahan or filming inside the rescue helicopter. Although defendants’ purposes could scarcely be regarded as evil or malicious (in the colloquial sense), their behavior could, even in light of their motives, be thought to show a highly offensive lack of sensitivity and respect for plaintiffs’ privacy. {Miller, supra, 187 Cal.App.3d at p. 1484.) A reasonable jury could find that defendants, in placing a microphone on an emergency treatment nurse and recording her conversation with a distressed, disoriented and severely injured patient, without the patient’s knowledge or consent, acted with highly offensive disrespect for the patient’s personal privacy comparable to, if not quite as extreme as, the disrespect and insensitivity demonstrated in Miller.

Turning to the question of constitutional protection for newsgathering, one finds the decisional law reflects a general rule of nonprotection: the press in its newsgathering activities enjoys no immunity or exemption from generally applicable laws. {Cohen v. Cowles Media Co., supra, 501 U.S. at pp. 669-670 [111 S.Ct. at pp. 2518-2519]; see Branzburg v. Hayes, supra, 408 U.S. at pp. 680-695 [92 S.Ct. at pp. 2656-2664] [extensive discussion, concluding press enjoys no special immunity from questioning *239regarding sources with information on criminal activities under investigation by grand jury]; Pell v. Procunier (1974) 417 U.S. 817, 832-835 [94 S.Ct. 2800, 2809-2810, 41 L.Ed.2d 495] [no special right of access to state prisoners for interviews]; Dietemann, supra, 449 F.2d at p. 249 [First Amendment is not a license for electronic intrusion; investigative journalism can be successfully practiced without secret recording]; Shevin v. Sunbeam Television Corp. (Fla. 1977) 351 So.2d 723, 725-727 [under Branzburg, Pell, and Dietemann, Florida statute prohibiting nonconsensual recording of private conversations may constitutionally be applied to news reporters].)

“It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil and criminal statutes of general applicability. Under prior cases, otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed.” (Branzburg v. Hayes, supra, 408 U.S. at pp. 682-683 [92 S.Ct. at p. 2657].) California’s intrusion tort and section 632 are both laws of general applicability. They apply to all private investigative activity, whatever its purpose and whoever the investigator, and impose no greater restrictions on the media than on anyone else. (If anything, the media enjoy some degree of favorable treatment under the California intrusion tort, as a reporter’s motive to discover socially important information may reduce the offensiveness of the intrusion.) These laws serve the undisputedly substantial public interest in allowing each person to maintain an area of physical and sensory privacy in which to live. Thus, defendants enjoyed no constitutional privilege, merely by virtue of their status as members of the news media, to eavesdrop in violation of section 632 or otherwise to intrude tortiously on private places, conversations or information.

Courts have impliedly recognized that a generally applicable law might, under some circumstances, impose an “impermissible burden” on newsgathering (Miller, supra, 187 Cal.App.3d at p. 1493); such a burden might be found in a law that, as applied to the press, would result in “a significant constriction of the flow of news to the public” and thus “eviscerate[]” the freedom of the press. (Branzburg v. Hayes, supra, 408 U.S. at pp. 693, 681 [92 S.Ct. at pp. 2663, 2656-2657].) No basis exists, however, for concluding that either section 632 or the intrusion tort places such a burden on the press, either in general or under the circumstances of this case. The conduct of journalism does not depend, as a general matter, on the use of secret devices to record private conversations. (Accord, Dietemann, supra, 449 F.2d at p. 249 [“We strongly disagree . . . that hidden mechanical contrivances are ‘indispensable tools’ of newsgathering. Investigative reporting is an ancient art; its successful practice long antecedes the invention of *240miniature cameras and electronic devices.”]; Shevin v. Sunbeam Television Corp., supra, 351 So.2d at p. 727 [“News gathering is an integral part of news dissemination, but hidden mechanical contrivances are not indispensable tools of news gathering.”].) More specifically, nothing in the record or briefing here suggests that reporting on automobile accidents and medical rescue activities depends on secretly recording accident victims’ conversations with rescue personnel or on filming inside an occupied ambulance. Thus, if any exception exists to the general rule that “the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally” (Branzburg v. Hayes, supra, 408 U.S. at p. 684 [92 S.Ct. at p. 2658]), such exception is inapplicable here.18

As should be apparent from the above discussion, the constitutional protection accorded newsgathering, if any, is far narrower than the protection surrounding the publication of truthful material; consequently, the fact that a reporter may be seeking “newsworthy” material does not in itself privilege the investigatory activity. The reason for the difference is simple: The intrusion tort, unlike that for publication of private facts, does not subject the press to liability for the contents of its publications. Newsworthiness, as we stated earlier, is a complete bar to liability for publication of private facts and is evaluated with a high degree of deference to editorial judgment. The same deference is not due, however, when the issue is not the media’s right to publish or broadcast what they choose, but their right to intrude into secluded areas or conversations in pursuit of publishable material. At most, the Constitution may preclude tort liability that would “place an impermissible burden on newsgatherers” (Miller, supra, 187 Cal.App.3d at p. 1493) by depriving them of their “ ‘indispensable tools’ ” (Dietemann, supra, 449 F.2d at p. 249).

Defendants urge a rule more protective of press investigative activity. Specifically, they seek a holding that “when intrusion claims are brought in the context of newsgathering conduct, that conduct be deemed protected so long as (1) the information being gathered is about a matter of legitimate concern to the public and (2) the underlying conduct is lawful (i.e., was undertaken without fraud, trespass, etc.).” Neither tort law nor constitutional precedent and policy support such a broad privilege. Miller, Dietemann, and *241Wolfson v. Lewis, supra, 924 F.Supp. 1413, were all cases in which the reporters and photographers were acting in pursuit of newsworthy material, but were held to have tortiously intruded on the plaintiffs’ privacy because their conduct was highly offensive to a reasonable person, not because they had committed any independent crime or tort.19 (See also Baugh v. CBS, Inc. (N.D.Cal. 1993) 828 F.Supp. 745, 757 [intrusion tort does not require existence of technical trespass]; KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1030-1032 [37 Cal.Rptr.2d 431] [no newsgathering defense to claim of intentional infliction of emotional harm for television reporter’s telling small children their neighbors had been killed while filming their shocked reaction, even if reporter hoped the children’s reaction would be “ ‘newsworthy,’ e.g., suitable to redeem a promise of ‘film at eleven’ ”]; Rest.2d Torts, § 652B, illus. 1, p. 379 [“A, a woman, is sick in a hospital room with a rare disease that arouses public curiosity. B, a newspaper reporter, calls her on the telephone and asks for an interview, but she refuses to see him. B then goes to the hospital, enters A’s room and over her objection takes her photograph. B has invaded A’s privacy.”].)

As to constitutional policy, we repeat that the threat of infringement on the liberties of the press from intrusion liability is minor compared with the threat from liability for publication of private facts. Indeed, the distinction led one influential commentator to assert flatly that “[intrusion does not raise first amendment difficulties since its perpetration does not involve speech or other expression.” (Nimmer, supra, 56 Cal.L.Rev. at p. 957.) Such a broad statement is probably not warranted; a liability rule, for example, that punished as intrusive a reporter’s merely asking questions about matters *242an organization or person did not choose to publicize would likely be deemed an impermissible restriction on press freedom. But no constitutional precedent or principle of which we are aware gives a reporter general license to intrude in an objectively offensive manner into private places, conversations or matters merely because the reporter thinks he or she may thereby find something that will warrant publication or broadcast.

Conclusion

The claim of these accident victims that their privacy was invaded by the production and broadcast of a documentary segment on their rescue raises questions about how the news media obtain their material (the intrusion claim), as well as about what they choose to publish or broadcast (the publication of private facts claim). Largely for constitutional reasons, the paths we have taken in analyzing these two privacy claims have diverged and led to different results.

The broadcast details of Ruth’s rescue of which she complains were, as a matter of law, of legitimate public concern because they were substantially relevant to the newsworthy subject of the piece and their intrusiveness was not greatly disproportionate to their relevance. That analytical path is dictated by the danger of the contrary approach; to allow liability because this court, or a jury, believes certain details of the story as broadcast were not important or necessary to the purpose of the documentary, or were in poor taste or overly sensational in impact, would be to assert impermissible supervisory power over the press.

The intrusion claim calls for a much less deferential analysis. In contrast to the broad privilege the press enjoys for publishing truthful, newsworthy information in its possession, the press has no recognized constitutional privilege to violate generally applicable laws in pursuit of material. Nor, even absent an independent crime or tort, can a highly offensive intrusion into a private place, conversation, or source of information generally be justified by the plea that the intruder hoped thereby to get good material for a news story. Such a justification may be available when enforcement of the tort or other law would place an impermissibly severe burden on the press, but that condition is not met in this case.

In short, the state may not intrude into the proper sphere of the news media to dictate what they should publish and broadcast, but neither may the media play tyrant to the people by unlawfully spying on them in the name of newsgathering. Summary judgment for the defense was proper as to plaintiffs’ cause of action for publication of private facts (the second cause of *243action), but improper as to the cause of action for invasion of privacy by intrusion (the first cause of action).

Disposition

The judgment of the Court of Appeal is affirmed except insofar as the Court of Appeal reversed and remanded for further proceedings on Ruth Shulman’s cause of action for publication of private facts.

George, C. J., and Kennard, J., concurred.

KENNARD, J.,

Concurring.—Applying existing California tort law, the plurality opinion holds that to establish a cause of action for invasion of privacy by publication of private facts the plaintiff must show that a private fact was publicly disclosed, that the disclosure would be offensive and objectionable to a reasonable person, and that the private fact was not newsworthy. I agree that here summary judgment was properly entered against plaintiffs on that cause of action. There is, however, a tension between the plurality opinion’s rule of liability for publication of private facts and some aspects of the United States Supreme Court’s current First Amendment jurisprudence. In my view, the potential clash in this area of law between personal privacy interests and the First Amendment’s guarantee of freedom of speech and of the press warrants a more detailed examination than the plurality opinion has undertaken.

Privacy is a fundamental constituent of human identity and of the communities we inhabit. (See Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort (1989) 77 Cal. L.Rev. 957.) Preserving a sphere of private thought, speech, and action, and controlling who are to be let into that sphere and the conditions under which they may enter, is an essential part of human dignity and autonomy. We define ourselves by controlling what we disclose to the world and what we preserve from public view. In an earlier age, privacy was more easily maintained, for the social and physical barriers that protected it were either prohibitively costly or physically impossible to breach. Not so today, when the social and physical barriers that formerly protected our privacy are dissolving in the face of technological and economic changes. (Loder v. City of Glendale (1997) 14 Cal.4th 846, 921 [59 Cal.Rptr.2d 696, 927 P.2d 1200] (cone. & dis. opn. of Kennard, J.).) Personal information that previously could only have been gathered at great expense, or could not have been gathered at all, is now routinely collected, analyzed, packaged, and distributed instantaneously and at trivial cost. Our secrets, great or small, can now without our knowledge hurtle around the globe at the speed of light, preserved indefinitely for future *244recall in the electronic limbo of computer memories. These technological and economic changes in turn have made legal barriers more essential to the preservation of our privacy.

The free flow of truthful information, however, is also a fundamental value of our society, embodied in the First Amendment to the federal Constitution. As the plurality opinion notes, the United States Supreme Court has not yet attempted to fashion a general rule striking a balance between our competing interests in preserving a sphere of personal privacy and in unfettered publication of truthful information. Because of the complexities of the problem, crafting a general rule in this area would not be an easy task. The authors of two prominent constitutional law treatises, for example, take opposite views on whether the First Amendment permits a cause of action for truthful publication of private facts. Professors Rotunda and Nowak would not allow the cause of action: “[I]n light of later constitutional cases, and given the general [First Amendment] rationale articulated by the Supreme Court over the years, the state should always recognize that truth is a defense in a defamation or right of privacy action . . . .” (4 Rotunda & Nowak, Treatise on Constitutional Law (2d ed. 1992) § 20.36, p. 231.) Professor Tribe, on the other hand, takes the view that the First Amendment permits the cause of action: “[W]hen government acts to limit the untrammeled gathering, recording, or dissemination of data or statements about an individual, of course it inhibits speech—but it also vindicates the individual’s ability to control what others are told about his or her life. Such control constitutes a central part of the right to shape the ‘self’ that any individual presents to the world.” (Tribe, American Constitutional Law (2d ed. 1988) § 12-14, p. 887.)

The plurality opinion tries to balance these two values by using the concept of newsworthiness to define a general limit on the scope of tort liability for disclosure of private facts; it acknowledges only a “theoretical risk” that the tort would intrude on expression protected by the First Amendment. (Plur. opn., ante, at p. 225, fn. 8.) I am not so sanguine.

The “newsworthiness” rule of liability may raise a number of concerns under at least some strains of the United States Supreme Court’s current First Amendment doctrine. First, turning as it does on an inevitably subjective determination of whether the public’s interest in a story is “legitimate” or “morbid,” the “newsworthiness” rule suppresses truthful speech on the basis of its content—the central evil of censorship. Content-based restrictions on speech bear a heavy burden, for “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” (Hurley v. Irish-American Gay, Lesbian and *245Bisexual Group of Boston, Inc. (1995) 515 U.S. 557, 574 [115 S.Ct. 2338, 2347-2348, 132 L.Ed.2d 487].) As Hurley explains: “The very idea that a noncommercial speech restriction be used to produce thoughts and statements acceptable to some groups or, indeed, all people, grates on the First Amendment, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression. The Speech Clause has no more certain antithesis.” (Id. at p. 579 [115 S.Ct. at p. 2350].) “It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.” (Rosenberger v. Rector and Visitors of Univ. of Va. (1995) 515 U.S. 819, 828 [115 S.Ct. 2510, 2516, 132 L.Ed.2d 700].) Accordingly, “[c]ontent-based regulations are presumptively invalid.” (R. A. V. v. St. Paul (1992) 505 U.S. 377, 382 [112 S.Ct. 2538, 2542, 120 L.Ed.2d 305].)

To the extent the United States Supreme Court has permitted content-based speech restrictions, it has required that the restrictions be justified by a “compelling” state interest and be the least restrictive means for achieving that interest. (First National Bank of Boston v. Bellotti (1978) 435 U.S. 765, 786 [98 S.Ct. 1407, 1421, 55 L.Ed.2d 707].) Indeed, without deciding whether truthful speech about private facts may ever be punished, the high court has specifically held that “where a newspaper publishes truthful information [concerning private facts] which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order.” (The Florida Star v. B. J. F. (1989) 491 U.S. 524, 541 [109 S.Ct. 2603, 2613, 105 L.Ed.2d 443], italics added.) The plurality opinion has not attempted to justify its liability rule by this test.

The individual or social harmfulness of speech with a particular content is rarely a justification for suppressing it. For example, in a decision summarily affirmed by the United States Supreme Court, the federal Seventh Circuit Court of Appeals struck down an Indianapolis ordinance banning constitutionally protected pornography that subordinated women because of the perceived harmfulness of such pornography, while permitting other constitutionally protected pornography. (American Booksellers Ass’n., Inc. v. Hudnut (7th Cir. 1985) 771 F.2d 323; affd., 475 U. S. 1001 [106 S.Ct. 1172, 89 L.Ed.2d 291] [mem. opn.].) It could be argued that the “publication of private facts” tort is similarly unconstitutional, because it punishes the publication of a certain class of private facts—those that are not newsworthy—based on its perceived harmfulness while permitting publication of the same private facts if they are newsworthy.

Also, if this tort is to withstand constitutional scrutiny we must apply it not only to the press, the focus of the plurality opinion’s analysis, but also to *246individuals who repeat the private facts of others in casual conversation. (The Florida Star v. B. J. F., supra, 491 U.S. 524, 540 [109 S.Ct. 2603, 2613] [“When a State attempts the extraordinary measure of punishing truthful publication in the name of privacy, it must demonstrate its commitment to advancing this interest by applying its prohibition evenhandedly, to the smalltime disseminator as well as the media giant.”]; id. at p. 542 [109 S.Ct. at pp. 2613-2614] (cone. opn. of Scalia, J.) [ same].) Doing so could chill much private communication, a cost the plurality opinion does not discuss.

The tension between current First Amendment doctrine and the tort of publication of private facts is also reflected in the questionable constitutional validity of two of the precedents on which the plurality opinion relies. In both Melvin v. Reid (1931) 112 Cal.App. 285 [297 P. 91] and Briscoe v. Reader’s Digest Association, Inc. (1971) 4 Cal.3d 529 [93 Cal.Rptr. 866, 483 P.2d 34, 57 A.L.R.3d 1], California courts permitted the plaintiffs to bring claims for the publication of the fact that, as shown in official public records, they had been tried for (and, in Briscoe, convicted of) crimes many years before. In Briscoe, this court reasoned that the crime and conviction no longer were newsworthy and therefore publication of those facts could be suppressed. I doubt that the holdings of these cases have survived the high court’s holding in Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 496 [95 S.Ct. 1029, 1047, 43 L.Ed.2d 328] that “the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records,” a prohibition that does not depend on the newsworthiness of the material published. (See also Smith v. Daily Mail Publishing Co. (1979) 443 U.S. 97, 103 [99 S.Ct. 2667, 2671, 61 L.Ed.2d 399] [“once the truthful information was ‘publicly revealed’ or ‘in the public domain’ the court could not constitutionally restrain its dissemination”].) Certainly, a widespread application of Briscoe could significantly alter the practice of biography and history, for even in the case of notable figures much of what occurs in their private lives may have faded from the public mind and, under the plurality opinion’s test, may no longer be newsworthy by the time the biographer or historian arrives on the scene.

I do not doubt the need to protect individual privacy against the ever-increasing intrusions upon it. I do question whether the publication of private facts can be prohibited on the basis of the perceived newsworthiness of the facts without creating a conflict with current First Amendment doctrine. Others have also questioned whether this tort can be reconciled with the First Amendment. (Hall v. Post (1988) 323 N.C. 259, 267 [372 S.E.2d 711] [rejecting “constitutionally suspect” tort of publication of private facts because of its tension with the First Amendment]; Zimmerman, Requiem for a *247Heavyweight: A Farewell to Warren and Brandeis’s Privacy Tort (1983) 68 Cornell L.Rev. 291, 306, 365 [arguing against adoption of the tort].) In particular, the “newsworthiness” standard makes liability turn on the sort of content-based subjective value judgments that have long been anathema in the United States Supreme Court’s First Amendment jurisprudence. It may be that someday that court will separate out private facts as a unique category of speech subject to special rules and a lesser degree of constitutional protection, as it has done for speech promoting commercial transactions. (See Dun & Bradstreet, Inc. v. Greenmoss Builders (1985) 472 U.S. 749, 758-760 [105 S.Ct. 2939, 2944-2946, 86 L.Ed.2d 593] (plur. opn. of Powell, J.) [characterizing speech on matters of private concern as subject to less stringent protection under the First Amendment than speech on public affairs].) Even in the commercial speech arena, however, the high court has rarely upheld restrictions suppressing truthful, nonmisleading statements. (See, e.g., 44 Liquormart v. Rhode Island (1996) 517 U.S. 484 [116 S.Ct. 1495, 134 L.Ed.2d 711] [striking down ban on advertising the price of liquor].)

As in other areas requiring the reconciliation of strong but competing social interests, I would continue to mark the boundaries between the First Amendment and the “publication of private facts” tort by the method of case-by-case adjudication, as the United States Supreme Court has done. (The Florida Star v. B. J. F, supra, 491 U.S. 524, 530 [109 S.Ct. 2603, 2607] [“The tension between the right which the First Amendment accords to a free press, on the one hand, and the protections which various statutes and common-law doctrines accord to personal privacy against the publication of truthful information, on the other, is a subject we have addressed several times in recent years. . . . [Although our decisions have without exception upheld the press’ right to publish, we have emphasized each time that we were resolving this conflict only as it arose in a discrete factual context.”]; Cox Broadcasting Corp. v. Cohn, supra, 420 U.S. 469.) Thus, I leave open the possibility that the plurality opinion’s “newsworthiness” rule may require further adjustment and revision in the future when we are presented with a case in which its application, unlike the situation here, would affirm liability for the publication of truthful private facts.

Mosk, J., concurred.

CHIN, J.,

Concurring and Dissenting.— I concur in part I of the plurality opinion. The newsworthy nature of the disclosure absolutely precludes plaintiffs’ recovery under this theory, and summary judgment for defendants on this cause of action was therefore proper.

*248I dissent, however, from the plurality’s holding that plaintiffs’ “intrusion” cause of action should be remanded for trial. The critical question is whether defendants’ privacy intrusion was “ ‘highly offensive to a reasonable person.’ ” (Plur. opn., ante, at p. 231, italics added.) As the plurality explains, “the constitutional protection of the press does reflect the strong societal interest in effective and complete reporting of events, an interest that may—as a matter of law—justify an intrusion that would otherwise be considered offensive.” {Id. at p. 236, italics added.) I also agree with the plurality that “Information-collecting techniques that may be highly offensive when done for socially unprotected reasons—for purposes of harassment, blackmail or prurient curiosity, for example—may not be offensive to a reasonable person when employed by journalists in pursuit of a socially or politically important story.” {Id. at p. 237, italics added.)

Although I agree with the plurality’s premises, I disagree with the conclusion it draws from those premises. The plurality concludes that a reasonable person in Ruth Shulman’s position might well have assumed that her conversation with the nurses and doctors assisting her rescue would be kept private. Likewise, the plurality believes, a reasonable person in Ruth’s position might not expect to find media personnel aboard a rescue helicopter. A jury might well decide that defendants’ desire for complete footage did not justify these privacy intrusions. (Plur. opn., ante, at pp. 237-238.)

Ruth’s expectations notwithstanding, I do not believe that a reasonable trier of fact could find that defendants’ conduct in this case was “highly offensive to a reasonable person,” the test adopted by the plurality. Plaintiffs do not allege that defendants, though present at the accident rescue scene and in the helicopter, interfered with either the rescue or medical efforts, elicited embarrassing or offensive information from plaintiffs, or even tried to interrogate or interview them. Defendants’ news team evidently merely recorded newsworthy events “of legitimate public concern” (plur. opn., ante, at p. 228) as they transpired. Defendants’ apparent motive in undertaking the supposed privacy invasion was a reasonable and nonmalicious one: to obtain an accurate depiction of the rescue efforts from start to finish. The event was newsworthy, and the ultimate broadcast was both dramatic and educational, rather than tawdry or embarrassing.

No illegal trespass on private property occurred, and any technical illegality arising from defendants’ recording Ruth’s conversations with medical personnel was not so “highly offensive” as to justify liability. Recording the innocuous, inoffensive conversations that occurred between Ruth and the nurse assisting her (see plur. opn., ante, at p. 211) and filming the seemingly routine, though certainly newsworthy, helicopter ride (id. at pp. 211-212) *249may have technically invaded plaintiffs’ private “space,” but in my view no “highly offensive” invasion of their privacy occurred.

We should bear in mind we are not dealing here with a true “interception”—e.g., a surreptitious wiretap by a third party—of words spoken in a truly private place—e.g., in a psychiatrist’s examining room, an attorney’s office, or a priest’s confessional. Rather, here the broadcast showed Ruth speaking in settings where others could hear her, and the fact that she did not realize she was being recorded does not ipso facto transform defendants’ newsgathering procedures into highly offensive conduct within the meaning of the law of intrusion.

In short, to turn a jury loose on the defendants in this case is itself “highly offensive” to me. I would reverse the judgment of the Court of Appeal with directions to affirm the summary judgment for defendants on all causes of action.

Mosk, J., concurred.

BROWN, J.,

Concurring and Dissenting.— I concur in the plurality’s conclusion that summary judgment should not have been granted as to the cause of action for intrusion, and I generally concur in its analysis of that cause of action.1 I respectfully dissent, however, from the conclusion that summary judgment was proper as to plaintiff Ruth Shulman’s cause of action for publication of private facts. For the reasons discussed below, I would hold that there are triable issues of material fact as to that cause of action as well.

Ironically, the plurality begins its discussion of the publication of private facts cause of action by describing it as “one of the more . . . well-defined areas of privacy law.” (Plur. opn., ante, at p. 214.) While that may have been an accurate description before today’s extended exegesis, it is certainly no longer the case. After paying lip service to this court’s well-established, scholarly precedents, the plurality proceeds to ignore their test for assessing newsworthiness. Worse yet, the new test adopted in the plurality opinion *250seriously compromises personal privacy by rendering otherwise private facts newsworthy whenever they bear a “logical relationship” to a matter of legitimate public concern, even in situations where the news media obtain the private facts by deceptive and unlawful means.

The plurality opinion starts innocuously enough, correctly reciting the elements of a cause of action for publication of private facts: “ ‘(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.’ ” (Plur. opn., ante, at p. 214, quoting Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 126 [188 Cal.Rptr. 762].) The plurality opinion then recounts the general test we have consistently applied in determining whether the private fact disclosed is of legitimate public concern—that is, whether it is newsworthy: “ ‘In determining whether a particular incident is “newsworthy” and thus whether the privilege shields its truthful publication from liability, the courts consider a variety of factors, including the social value of the facts published, the depth of the article’s intrusion into ostensibly private affairs, and the extent to which the party voluntarily acceded to a position of public notoriety.’ ” (Plur. opn., ante, at p. 220, quoting Kapellas v. Koftnan (1969) 1 Cal.3d 20, 36 [81 Cal.Rptr. 360, 459 P.2d 912] (hereafter Kapellas), see also Forsher v. Bugliosi (1980) 26 Cal.3d 792, 810, 812 [163 Cal.Rptr. 628, 608 P.2d 716] [same]; Briscoe v. Reader’s Digest Association, Inc. (1971) 4 Cal.3d 529, 541 [93 Cal.Rptr. 866, 483 P.2d 34, 57 A.L.R.3d 1] [same].)

In this case, a straightforward application of the Kapellas newsworthiness test leads to one inescapable conclusion—that, at the very least, there are triable issues of material fact on the question of newsworthiness. The private facts broadcast had little, if any, social value. (Kapellas, supra, 1 Cal.3d at p. 36.) The public has no legitimate interest in witnessing Ruth’s disorientation and despair. Nor does it have any legitimate interest in knowing Ruth’s personal and innermost thoughts immediately after sustaining injuries that rendered her a paraplegic and left her hospitalized for months—“I just want to die. I don’t want to go through this.” The depth of the broadcast’s intrusion into ostensibly private affairs was substantial. {Ibid.) As the plurality later acknowledges in analyzing “the depth of the intrusion” for purposes of Ruth’s intrusion cause of action, “[a]rguably, the last thing an injured accident victim should have to worry about while being pried from her wrecked car is that a television producer may be recording everything she says to medical personnel for the possible edification and entertainment of casual television viewers. HO For much the same reason, a jury could reasonably regard entering and riding in an ambulance—whether on the ground or in the air—with two seriously injured patients to be an egregious *251intrusion on a place of expected seclusion. ... A jury could reasonably believe that fundamental respect for human dignity requires the patients’ anxious journey be taken only with those whose care is solely for them and out of sight of the prying eyes (or cameras) of others.” (Plur. opn., ante, at p. 238.) There was nothing voluntary about Ruth’s position of public notoriety. (Kapellas, supra, 1 Cal.3d at p. 36.) She was “involuntarily caught up in events of public interest”' (plur. opn., ante, at p. 215), all the more so because defendants appear to have surreptitiously and unlawfully recorded her private conversations with Nurse Laura Carnahan. (See id. at pp. 233-235.)

Inexplicably, the plurality jettisons the Kapellas newsworthiness test in favor of its own “logical relationship” test. Under this new test, “where the facts disclosed about a private person involuntarily caught up in events of public interest bear a logical relationship to the newsworthy subject of the broadcast and are not intrusive in great disproportion to their relevance—the broadcast was of legitimate public concern, barring liability under the private facts tort.” (Plur. opn., ante, at p. 215; see also id. at pp. 224-226, 228-229, 242.) Here, the plurality misapplies its own new test, wrongly concluding there are no triable issues of material fact. (Compare id. at pp. 228-230 [no triable issues] with id. at pp. 237-238 [describing the highly intrusive nature of the news media’s conduct in this case].) More significantly, however, the plurality fails to acknowledge that its new test is a radical departure from that set out in Kapellas and its progeny, a departure that should be obvious to even a casual reader.

Under the plurality’s new test, personal privacy must yield whenever the overall subject matter of a broadcast is newsworthy and the private facts disclosed bear a “logical relationship” to that subject matter. Thus, to “[t]he more difficult question [of] whether Ruth’s appearance and words as she was extricated from the overturned car, placed in the helicopter and transported to the hospital were of legitimate public concern” (plur. opn., ante, at p. 228), the plurality offers the facile answer that they were because “her disorientation and despair were substantially relevant to the segment’s newsworthy subject matter” (id. at p. 229).

Contrary to the plurality’s claim that it is “accommodating conflicting interests in personal privacy and in press freedom as guaranteed by the First Amendment to the United States Constitution” (plur. opn., ante, at p. 215, italics added), in reality it sacrifices the constitutional right to privacy on the altar of the First Amendment. Unlike the Kapellas newsworthiness test, which expressly considers both “the depth of the [broadcast’s] intrusion into ostensibly private affairs” and “the extent to which the party voluntarily acceded to a position of public notoriety” as part of the mix (Kapellas, supra, *2521 Cal.3d at p. 36), the plurality’s new “logical relationship” test considers only whether the private facts disclosed are “intrusive in great disproportion to their relevance” (plur. opn., ante, at p. 215).

The latter inquiry is substantially less accommodating of personal privacy than the former. Suppose, for example, that a television producer decided to broadcast a story on the reluctance of victims to report incidents of sexual assault, undeniably a newsworthy subject matter. Under the plurality’s formulation, the producer would then be free to broadcast a surreptitiously and unlawfully recorded account of a specific victim’s reluctance, conveyed in confidence to her therapist, because that too would undeniably bear “a logical relationship to the newsworthy subject of the broadcast” and would not be “intrusive in great disproportion to [its] relevance.”2 (Plur. opn., ante, at p. 215, italics added.) The Kapellas newsworthiness test, by contrast, would yield the correct result—namely, that the therapy session is not newsworthy because “the depth of the [broadcast’s] intrusion into ostensibly private affairs” is simply too great and because the victim did not “voluntarily accede[] to a position of public notoriety.” (Kapellas, supra, 1 Cal.3d at p. 36.)

In short, I see no reason to abandon our traditional newsworthiness test, which has produced consistent and predictable results over the course of nearly three decades. As I have explained, a straightforward application of that test demonstrates there are triable issues of material fact on the question of newsworthiness and, hence, that summary judgment should not have been granted on Ruth’s cause of action for publication of private facts.

For the reasons discussed above, I would affirm the judgment of the Court of Appeal in its entirety.

Baxter, J., concurred.

Respondents’ petition for a rehearing was denied July 29, 1998, and the opinion was modified to read as printed above. Mosk, J., and Chin, J., were of the opinion that the petition should be granted.

Mr. JUSTICE HALLETT

delivered the opinion of the court:

This involves consolidated appeals from two actions in the circuit court of Cook County. Both arose primarily out of problems flowing from the installation of Textolite plastic laminate wall paneling on the walls of the new St. Joseph Hospital during its construction, which paneling proved to have a “flame spread” rating some 17 times the maximum permitted under the Chicago Building Code and had to be replaced with paneling complying with said Code.

The first was a declaratory judgment action brought by the Hospital against its architect, the contractor and the manufacturer-supplier of said wall paneling. The second was an action at law brought by the manufacturer-supplier against the contractor for the price of said original paneling. Further discussion of the litigation, its outcome and the various appeals will be deferred for the present.

While this is an extremely long (hundreds of documents, 5000 pages of transcript, and 444 pages of appellate briefs) consolidated appeal, involving two lawsuits, four adverse parties and two jury trials (taking 6V2 weeks), the “bare bones” of the controversy are relatively simple.

The St. Joseph Hospital (the Hospital) in 1958 entered into a contract with architect Belli & Belli of Missouri (Belli) for the erection of a hospital on a new site in Chicago to replace one erected before the Great Chicago Fire of 1871, and the general construction of the hospital was undertaken by the Corbetta Construction Company (Corbetta). In April of 1965, when the building had been substantially completed, the Hospital was advised by the city collector that its application for a license to operate the Hospital had been disapproved because the wall paneling (General Electric’s “Textolite”) which covered its rooms and corridors, and had been manufactured and furnished by the General Electric Company (General Electric), did not comply with a Chicago Code requirement that such paneling have a “flame spread” rating of not to exceed 15. Actually it had a rating of 255, 17 times the maximum. The city also threatened criminal action against the Hospital for operating without said license.

At this juncture, the Hospital called upon all of the parties involved to remedy the situation and withheld from Corbetta final payment of some $453,000. Although all of the parties deplored the situation, each took the position that it was not itself at fault and that only others were to blame. At about this time Corbetta advised the Hospital that it was their intention to file suit for the $453,000 so withheld by the Hospital.

Faced with the threat of two lawsuits and a complete shutdown of its operation, the Hospital, on May 14, 1965, filed a complaint for declaratory judgment against Corbetta, Belli and General Electric, setting forth the above described controversy between the parties, and attaching copies of the various contracts, subcontracts and applicable municipal ordinances. As the result of a petition for immediate relief, an order was entered in this action, permitting the Hospital to take immediate steps to remove the Textolite wall paneling and to replace it with paneling approved by the city of Chicago, all without prejudice to the rights of any of the parties.

Under this order, the Textolite wall paneling was removed and replaced with Westinghouse Micarta paneling, an asbestos plastic laminate installed on an asbestos panel, meeting the 15 flame-spread rating of the Chicago Building Code, at a total cost of some $300,000.

Meanwhile, the Hospital amended its complaint; various motions to dismiss by Belli and General Electric were filed and denied; Corbetta counterclaimed against the Hospital, Belli and General Electric; Belli cross-claimed against Corbetta and General Electric; and, eventually, appropriate answers were filed to the complaints, counterclaims and cross-claims and the case was at issue. The trial court, on the motion of the Hospital, segregated the various counterclaims and cross-claims from the question of liability and this is not here challenged. It also deferred the question of damages until after liability had been determined and this is here challenged only by Belli.

The jury in the trial with respect to liability to the Hospital rendered a verdict against all three defendants. At the close of all the evidence in said trial, the court directed a verdict for the Hospital and against Corbetta on its counterclaim. A subsequent jury then determined that the costs of reconstructing the corridors of the Hospital with a wall paneling which complied with the Chicago Building Code, plus attorneys’ fees, were $431,770.55. In addition, Corbetta and General Electric were found jointly and severally liable to the Hospital for attorneys’ litigation expenses of $112,251.21.

The various defendants had filed cross-claims against each other, each contending that any recovery by the Hospital against it should be passed on to other defendants. At the conclusion of the jury trial on the question of liability, all defendants waived jury and submitted their cross-claims to the court, which denied all such indemnity claims. The Hospital having retained amounts awarded it, Corbetta was given a separate judgment against Belli and General Electric for one-third of the damages and against General Electric for one-half of the litigation expense. The result is that, under the present judgment, each of the three defendants will bear one-third of the general damages and that Corbetta and General Electric will each bear one-half of the Hospital’s litigation expense.

Under a second count of its complaint, the Hospital sought to recover from all three defendants for the cost of reconstructing portions of the corridor walls behind which were located pipe or access spaces, to meet the city’s one hour fire resistance requirements. Judgment was entered on this count for the Hospital against Belli, for $17,178.31.

The second lawsuit, Cáse No. 56761, is an action by General Electric against Corbetta, seeking to recover payment for the Textolite plastic laminate wall paneling originally affixed to the walls of the hospital. The trial court dismissed this action on Corbetta’s motion on the ground that the material facts determined in the case brought by the Hospital against all three defendants precluded General Electric from recovery.

All three defendants have appealed, raising many issues. Rather than to note each party’s various contentions here, we shall discuss the issues under nine general headings, noting the several parties’ positions with respect thereto as seems appropriate.

I.

As we see it, the first question to be resolved is whether the trial court erred in refusing to dismiss the Hospital’s complaint for declaratory judgment. Only defendant Belli here challenges this ruling.

Section 57.1 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 57.1) provides as follows:

“§ 57.1. Declaratory judgments. (1) No action or proceeding is open to objection on the ground that a merely declaratory judgment, decree or order is sought thereby. The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any statute, municipal ordinance, or other governmental regulation, or of any deed, will, contract or other written instrument, and a declaration of the rights of the parties interested. The foregoing enumeration does not exclude other cases of actual controversy.”

The Hospital’s filing its declaratory action when it did, without waiting for an even more complete disaster, certainly was proper.

In Trossman v. Trossman (1960), 24 Ill.App.2d 521, 165 N.E.2d 368, this court, in reversing the dismissal of a declaratory judgment action and remanding the cause for further proceedings, at page 531, quoted as follows from 26 C.J.S. Declaratory Judgments §28 (1956):

“ ‘It is not essential to a proceeding for a declaratory judgment that there be a violation of a right, a breach of duty, or a wrong committed by one party against the other. The mere existence of a cloud, the denial of a right, the assertion of an unfounded claim, the existence of conflicting claims, or the uncertainty or insecurity occasioned by new events may constitute the operative facts entitling a party to declaratory relief.’ ”

In Walton Playboy Clubs, Inc. v. City of Chicago (1962), 37 Ill.App. 2d 425, 185 N.E.2d 719, in affirming (with some modifications) a declaratory judgment involving a threatened revocation of the plaintiffs license to do business, this court, at pages 428-429, said:

“Apart from this, the situation confronting the plaintiff at the time this suit was started made it singularly fitting to seek relief by way of declaratory judgment. The plaintiff had made a large investment in a business which, in its general outline, was in conformity with several others, long-conducted without interference by the City. It had received from the Department of Police an official opinion of the City’s Department of Law stating that its method of doing business was illegal. It had every reason to believe that the City would proceed against it in accordance with the opinion. The success of its business depended upon the sale of memberships and the threat of having its licenses revoked would discourage their sale. Its business and its investment were in jeopardy. A justiciable controversy existed. The facts and the interpretation of the applicable statutes were in dispute. The plaintiff did not have to sit back and wait for the blow to fall just because the altercation might be decided in an alternative action (Liquor Control Act, 111 Rev Stats (1959) c43) which the City could invoke when it got ready. This was especially so in view of the plaintiff’s offer in its complaint to promptly comply with the court’s construction of the law. American Civil Liberties Union v. City of Chicago, 3 Ill2d 334, 121 NE2d 585; Kitt v. City of Chicago, 415 Ill 246, 112 NE2d 607; Retail Liquor Dealers’ Protective Ass'n v. Fleck, 408 Ill 219, 96 NE2d 556.”

To the same general effect, see Roberts v. Roberts (1967), 90 Ill.App. 2d 184, 187, 234 N.E.2d 372; La Salle Casualty Co. v. Lobono (1968), 93 Ill.App.2d 114, 117-118, 236 N.E.2d 405; Crest Commercial, Inc. v. Union-Hall, Inc. (1968), 104 Ill.App.2d 110,114-115, 243 N.E.2d 652.

In its opening brief, Belli contends that the plaintiffs complaint should have been dismissed because an adequate remedy at law was available to the plaintiff. Reliance is placed upon only one case, Goldberg v. Valve Corporation of America (1967), 89 Ill.App.2d 383, 233 N.E.2d 85. It was there held that an action brought by an employee who had a written contract of employment, which had been terminated by his employer, did not properly come within the ambit of the Declaratory Judgment Act. In that case, the court, at page 392, said:

“Plaintiff now by his complaint seeks not to have his present rights in an existing contract declared in a preventive fashion, rather he endeavors to have them enforced and executed after the fact. He has shewn no actual and present controversy in its true sense.” (Emphasis supplied.)

Furthermore in Goldberg, the contract had been terminated and the damages, if any (the opinion seems to express doubt that any could arise) were ascertainable. Here, the contract had not been completed and the damages could not yet be ascertained, and were not in fact ascertained until the Textolite wall paneling had been removed and paneling meeting the City Building Code had replaced it. It should also be noted that legal writers and other Illinois cases appear to express views differing considerably from some of those expressed in Goldberg.

In American Civil Liberties Union v. Chicago, 3 Ill.2d 334, 353, 121 N.E.2d 585, Mr. Justice Schaefer, speaking for our supreme court, at page 353, said:

“* * 6 Defendants’ contention that the availability of affirmative relief by way of mandamus bars an action for a declaratory judgment is refuted by the explicit language of section 57% of the Civil Practice Act. (Ill. Rev. Stat. 1953, chap. 110, par. 181.1.) Goodyear Tire and Rubber Co. v. Tierney, 411 Ill. 421, is not to the contrary. We there held only that a plaintiff desiring to challenge the validity of a tax assessment must pursue the statutory remedies provided by the Revenue Act, and that a declaratory judgment, like an injunction, could not be had in the absence of circumstances supplying a basis for interference with the collection of taxes. The case in no way suggests that an action for declaratory relief is defeated by the mere existence of another form of action which could presently be employed.”

To the same effect see Koziol v. Village of Rosemont (1961), 32 Ill. App.2d 320, 327, 177 N.E.2d 867; La Salle Casualty Co. v. Lobono (1968), 93 Ill.App.2d 114, 118, 236 N.E.2d 405; Kitt v. City of Chicago (1953), 415 Ill. 246, 252, 12 N.E.2d 607; Elm Lawn Cemetery Co. v. City of Northlake (1968), 94 Ill.App.2d 387, 391, 237 N.E.2d 345; Young v. Hansen (1969), 118 Ill.App.2d 1, 5-6, 249 N.E.2d 300.

We therefore conclude that declaratory judgment was properly employed in this case.

II.

The second question to be resolved, as we see it, is whether the trial court erred in conducting separate trials, one to determine the basic liability of the various defendants to the Hospital and, another to determine how much the Hospital should recover (by retention or otherwise) to compensate it for the removal of the Textolite wall paneling and tibe subsequent installation of Micarta wall paneling meeting the requireménts of the City Building Code. Again, no defendant other than Belli challenges the procedure adopted by the trial court.

In its opening brief, Belli cited no cases and contended only that:

“* * * We know of no authority for such procedure in Illinois courts, the only provisions for severance being contained ini The Illinois Practice Act, chapter 110, I.R.S., Paragraphs 22, 44 and 51. Paragraph 23 permits servance [sic] as to parties. Paragraph 44 permits separate trial as to causes of action as does paragraph 51. Nothing permits or authorizes separate trials on the issues of liability and damages. * * *”

Later it supplemented its brief by citing Mason v. Dunn (1972), 6 Ill. App.3d 448, 285 N.E.2d 191, where the Appellate Court for the Second District held that, in the trial of a personal injury action, “there is no statute or Supreme Court rule in Illinois which expressly allows severance of issues” and “that the trial court is without inherent authority to sever the issues of liability and damages.” It therefore reversed a judgment so reached and remanded the case for a new trial.

Both said argument and said case miss the point, in that, as we have above demonstrated and held, the case at bar was properly brought and prosecuted as an action for declaratory judgment, with provisions expressly providing for the adjudication or declaration of rights in the first instance, followed, if necessary, with further coercive action, including money judgments.

Section 57.1 of the Civil Practice Act (Ill. Rev. Stat. 1965, ch. 110, par. 57.1), entitled “Declaratory Judgments,” in parts here pertinent, provides:

“(2) Subject to rules, declarations of rights, as herein provided for, may be obtained by means of a pleading seeking that relief alone, or as incident to or part of a complaint, counterclaim or other pleading seeking other relief as well, and if a declaration of rights is the only relief asked, the case may be set for early hearing as in the case of a motion.

(3) If further relief based upon a declaration of right becomes necessary or proper after the declaration has been made, application may be made by petition to any court having jurisdiction for an order directed to any party or parties whose rights have been determined by the declaration to show cause why the further relief should not be granted forthwith, upon reasonable notice prescribed by the court in its order.”

In Jenner & Tone’s Historical and Practice Notes (S.H.A. (1965), ch. 110, par. 57.1, at 132), it is said:

“* * * It is now settled in Illinois and other states that the supplemental relief contemplated by statutory provisions such as subsection (3) of the Illinois Act is not limited to further declaratory relief, Burgard v. Mascoutah Lumber Co., supra, and that such further relief may include assessment of damages or other affirmative relief obtainable by petition in the same action and in the same court in which the declaratory relief was obtained. Anderson, Declaratory Judgments, (2d ed., 1951, §451).”

In Burgard v. Mascoutah Lumber Co. (1955), 6 Ill.App.2d 210, 127 N.E.2d 464, in affirming a money judgment entered for the defendant against the plaintiff in a declaratory judgment action, the Appellate Court for the Fourth District, at page 218, said:

“It is generally held that it is proper to award coercive relief after declaring the rights of the parties, including the entry of a money judgment. Tolle v. Struve, 124 Cal. App. 263, 12 P.2d 61; Alfred E. Joy Co. v. New Amsterdam Casualty Co., 98 Conn. 794, 120 Atl. 684; Holly Sugar Corp. v. Fritzler, 42 Wyo. 446, 296 Pac. 206."

To the same effect see Crerar Clinch Coal Co. v. Board of Education (1957), 13 Ill.App.2d 208, 218, 141 N.E.2d 393; Greene v. Gust (1960), 26 Ill.App.2d 2, 6, 167 N.E.2d 438; Mundo v. DeGrazio (1966), 77 Ill. App.2d 52, 222 N.E.2d 253 (abstract opinion).

We therefore hold that the trial court properly severed the trial as to basic liability from the trial as to how much the Hospital should recover.

III.

This brings us to what we perceive to be the third issue — How much (in dollars) should the Hospital recover (by retention or otherwise) to compensate it for the expenses involved in the removal of the General Electric Textolite waU paneling and the instaUation in its place of the Westinghouse Micarta wall paneling?

The defendants (putting aside for the present their several contentions that they are not liable at all) contend, inter alia, that the Hospital is not entitled to recover the extra cost of the more expensive Micarta paneling and the extra labor costs required by its more difficult installation, and that, insofar as such extra costs are included, the jury’s verdict (and the court’s judgment thereon) unjustly enriches the Hospital by giving it, free of charge, better and more expensive wall paneling than it had bargained for and thus puts it in a better position than it would have been had the original contracts been fully performed. We are of the considered opinion that this contention is well founded in this case.

In 22 Am. Jur. 2d Damages § 12 (1965), at 28, it is said:

“§ 12. Compensation as the general rule or objective. Compensation is the stated goal of courts in awarding damages for tortious injury or for breach of a contractual promise. With torts, compensation most often takes the form of putting the plaintiff in the same financial position he was in prior to the tort. With contracts, compensation is most often stated in terms of placing the plaintiff in the same financial position in which he would have been had the promise not been broken.”

and, in section 13, at page 30, that:

“® ® * The law will not put him in a better position than he would be in had the wrong not been done or the contract not been broken.”

In 25 C.J.S. Damages § 74 (1966), at 846, 849, it is said:

“Compensation is the value of the performance of the contract; the person injured is, as far as it is possible to do so by a monetary award, to be placed in the position he would have been in had the contract been performed. ® * ®

On the other hand, the injured person is limited to the loss actually suffered by reason of the breach; he is not to be put in a better position by a recovery of damages for the breach than he would have been in if there had been performance.”

Some of the many cases holding that the “injured party is limited to the loss actually suffered by reason of the breach and is not to be put in a better position by a recovery of damages for the breach than he would have been in had there been performance,” are (chronologically): Ciminelli v. Umland Brothers Inc. (1932), 236 App. Div. 154, 258 N.Y.S. 143, 144; Hennen v. Streeter (1934), 55 Nev. 285, 31 P.2d 160, 163; Lastinger v. City of Adel (1943), 69 Ga. App. 535, 26 S.E.2d 158, 159; Blair v. United States (8th Cir. 1945), 150 F.2d 676; Talbot-Quevereaux Const. Co. v. Tandy (Mo. App. 1953), 260 S.W.2d 314, 316; Ficara v. Belleau (1954), 331 Mass. 80, 117 N.E.2d 287, 289; Thorne v. White (D.C. Mun. App. 1954), 103 A.2d 579, 580-81; United Protective Workers v. Ford Motor Co. (7th Cir. 1955), 223 F.2d 49, 53; Western Oil & Fuel Co. v. Kemp (8th cir. 1957), 245 F.2d 633, 644; Wickman v. Opper (1961), 188 Cal.App.2d 129, 10 Cal. Rptr. 291, 294; Dehnart v. Waukesha Brewing Co. (1963), 21 Wis.2d 583, 124 N.W.2d 664, 670; Hendrie v. Board of County Commissioners (1963), 153 Colo. 432, 387 P.2d 266, 271; Richter Contracting Co. v. Continental Casualty Co. (1964), 230 Cal.App.2d 491, 41 Cal. Rptr. 98, 107; Hanz Trucking, Inc. v. Harris Brothers Co. (1965), 29 Wis.2d 254, 138 N.W.2d 238, 246; Oakwood Villa Apartments, Inc. v. Gulu (1968), 9 Mich.App. 568, 157 N.W.2d 816; Dierickx v. Vulcan Industries (1968), 10 Mich.App. 67, 158 N.W.2d 778, 782; Dewaay v. Muhr (Iowa 1968), 160 N.W.2d 454, 459; Boten v. Brecklein (Mo. 1970), 452 S.W.2d 86, 93; Mid-Continent Telephone Corp. v. Home Telephone Co. (N.D. Miss. 1970), 319 F.Supp. 1176; Crawford v. Associates, Inc. v. Groves-Keen, Inc. (1972), 127 Ga. App. 646, 194 S.E.2d 499, 502; and Louise Caroline Nursing Home, Inc. v. Dix Construction Corp. (Mass. 1972), 285 N.E.2d 904.

Illinois follows this rule. In Anderson v. Long Grove Country Club Estates (1969), 111 Ill.App.2d 127, 249 N.E.2d 343, the Appellate Court for the Second District, through Mr. Justice Davis, at page 141, said:

“The buyer also claims that the damages were excessive and that the seller got more under the judgment than he bargained for in his contract. We agree that the purpose of damages is to put the injured party in the position he would have been in had the contract been fully performed. 22 Amjur2d, Damages, §§ 45, 4g_ * * *»

Finally, let us examine one case in which the operative facts are very similar to those of the case here before us.

In Henry J. Robb, Inc. v. Urdahl (D.C. Mun. App. 1951), 78 A.2d 387, the appellant, owner of a garage, hired appellees, consulting engineers, to prepare plans and specifications for, and to supervise the installation of, a heating system sufficient in size and design to heat the building to a temperature of seventy degrees. Appellees prepared plans and specifications; bids based thereon were obtained; and a contract for the installation was awarded to Combustioneer Corporation at a cost of $4,602. The work was done by the contractor under appellees’ supervision, but upon completion, it was found that the building was inadequately heated.

Investigation disclosed that in preparing the plans the appellees had made a mathematical error. To correct this, they prepared additional plans calling for three new heaters and the relocation of one. Appellant accepted these plans and authorized the contractor to do the work called for by them at a cost of $1,403. Appellant then sued appellee engineers for this sum, less $138.06, the balance due appellees on their agreed fee. Appellees filed a counterclaim for the balance of their agreed fee.

The trial court found that had the plans been correctly drawn originally the cost of the installation would have been $183.30 less than the total cost of the two jobs, due to an increase in costs of materials and labor between the dates of the original and final installations. Findings and judgments were entered for the appellant for $183.30 and for appellees for $138 on their counterclaim.

In affirming, the court, at pages 388-389, said:

“Compensation is the basic principle of damages. For breach of contract the injured party is entitled to be compensated for losses which are the natural consequence and proximate result of the breach. The purpose of such compensation is to place the injured party in as good a position as that in which full performance would have placed him. He is not entitled because of a breach to be put in a better position than he would have been had the contract been fully performed.

We have found no case squarely in point with the present one, but applying the general principles of damages above stated we conclude that the judgment of the trial court was correct. Appellees contracted to furnish plans for a heating system which would heat the building to seventy degrees. They did not contract to install the system or guarantee that the system could be installed for any specified sum. Appellees through negligence failed to furnish the proper plans, but when such negligence was discovered they supplied supplemental plans which together with the original plans fulfilled their contract obligation. Had the original plans been free from error the heating system would have cost appellant $183.30 less than was the cost by use of the original and supplemental plans. Thus appellees’ error cost appellant $183.30 and appellees are hable for that amount. Such amount places appellant in the same position it would have been in if the error had not been committed. A larger sum would permit appellant to profit by appellees’ mistake.

It is true that appellees’ error caused appellant to believe and expect it would get the plant at a lesser price than it actually cost. But, without some special circumstances not here shown, the law does not provide compensation for disappointment over non-realization of a belief or expectation.”

In order properly to apply the law as above outlined to the facts of this case, we must first determine what the Hospital would have received, insofar as wall paneling is concerned, had the basic contracts been fully performed in the first place.

The Hospital entered into a contract with Belli for all architectural and engineering services in connection with the design and erection of the new hospital, which provided that:

“The owner hereby engages the Architect to perform the following services: the preparation of preliminary studies and design drawings for the Hospital and the necessary conferences in connection therewith; the preparation of working drawings, specifications, large scale and full size detail drawings, for the Hospital; the structural and mechanical design for the contract drawings and specifications; the drafting of forms of proposals for the several trades; the taking of bids and the preparation of contracts; the checking of shop drawings; the inspection of models; the issuance of certifications for payment; the keeping of accounts, the general administration of the business and the supervision of the construction of the Hospital, all of which is hereinafter referred to as the ‘Work’ ”.

The contract further provided that:

“The plans, specifications and drawings will be prepared in such manner as will permit the application and submission of bids and the letting of contracts on a separate trades basis; that is to say, the Owner will not have one general contract for the construction of the Hospital in its entirety, but Architect will on behalf of Owner submit specific proposals to the separate trades and contracts will be executed by the separate trades directly with the Owner covering all of the work required to be performed and materials furnished for the construction of the Hospital. Part of the Work, as defined above, will be the supervision by Architect of the performance of these separate contracts.”

The contract further provided that the Hospital, for said services, pay Belli 9Vz% of the cost of the work excluding certain costs such as sterilizers, lights, etc. This was in lieu of the 6 to 8% ordinarily charged by architects.

As a result, there was actually no general contractor having general supervision of the work, but Belli was to prepare and submit specific proposals to the separate trades and contracts were then to be executed between them and the Hospital, their performances being supervised by Belli.

Under this arrangement, bids were taken for the general construction of the hospital and Corbetta was awarded the contract for $6,011,910, later revised to $6,224,900.

This contract, inter alia, originally required Corbetta to furnish and install U.S. Plywood Corporation’s “Novoply” plaster laminate veneered wall paneling, composed of resin-treated wood flakes and veneer particles, or approved equal, but, as is usual, provided that change orders could be made by Belli and, after approval by the Hospital, would be forwarded to Corbetta, which would then execute them.

In August of 1962, Belli prepared a “change order” requiring Corbetta to furnish and install, in lieu of said “Novoply” and at no increase in cost, General Electric’s 5/16" thick Batten Panel System, consisting of a textured patterned high-pressure laminated plastic base (Textolite) on tempered hardboard with equivalent plastic laminate balancing sheet on the back. This change order was approved in writing by Sister Vincent for the Hospital.

As subsequently developed, this “Textolite” wall paneling had a “flame spread” of 255, some 17 times the maximum set by the Chicago Building Code, and the only plastic laminate wall paneling then being manufactured which could have met the Code’s maximum flame-spread requirement was Westinghouse’s Micarta (asbestos), which eventually replaced the Textolite.

On October 26, 1962, General Electric and Corbetta entered into a subcontract under which General Electric was to furnish and install its said Textolite wall paneling in the Hospital but this was revised to provide that Corbetta install the paneling as subcontractor of General Electric.

The actual installation of the Textolite began in September of 1963 and was completed 7 months later in the latter part of March or the early part of April, 1964, and on April 17, 1964, the “change over” from the old hospital to the new one took place.

Summarizing the foregoing, under the contracts involved, the Hospital was, insofar as wall paneling is concerned, entitled to have Belli use its best professional skill in selecting a wall paneling meeting, among other criteria, the Chicago Building Code’s maximum flame spread rating of 15. There is no real doubt that Belli should originally have specified Westinghouse’s Micarta asbestos wall paneling which was the only plastic laminate wall paneling which met the flame spread standard set by the Chicago Building Code.

But had Belli so complied with its contract, the Hospital would have had to pay not the relatively modest cost of the Textolite wall paneling material, and the costs of its relatively simple installation, but the greatly increased cost of the Micarta asbestos paneling, plus the greatly increased costs of its more difficult installation. And, as Sister Vincent (the administrator of the Hospital during the construction, who signed the order requiring the change from “Novoply” to “Textolite” on behalf of the Hospital) testified, she would have signed a change order specifying a plastic laminate wall covering which cost more “if it was necessary to comply with the Code.”

Certainly the Hospital should not receive, without paying more than it originally had agreed to pay for the Textolite, a windfall in the form of the more expensive Micarta paneling and the extra labor costs required by its more difficult installation, merely because its architect initially failed to specify it. The same applies to the door stops, solid core doors and hardware and their installation, which were necessary and were furnished in the reconstruction but were not included in BeHi’s original plans and specifications.

Excluding the $112,770.55 attorneys’ fees, the jury’s verdict was for $319,519.34, being the total of two items, $297,479.86 paid by the Hospital to H. B. Barnard & Co., for the removal and reconstruction, and $22,039.48 ($23,199.45, less 5% of the sum paid to Schmidt, Garden & Erickson) paid for architectural services in connection with the same.

Applying the law as above outlined to the facts of this case, the jury’s verdict is utterly unsupported by and contrary to the undisputed evidence to the extent of $116,484, as shown by the foUowing.

Micarta paneling (which, due to savings resulting from increased production, had not increased in cost since 1963) would have cost $106,000 in 1963. The Textolite paneling, instaHed and later removed, cost $58,000 in 1963 ($87,000 less one-third for paneling not removed.) On this alone the Hospital is ahead $48,000.

The Micarta, being much harder and more expensive to instaH than the Textolite, would have cost $80,000 to instaH in 1963 (the actual cost of instaHation of $107,750 was a 30% increase over 1963). The Textolite cost $33,000 to instaH in 1963. On this, the Hospital is ahead another $47,000.

To this add door stops $4,298, solid core doors and hardware $8,811 and instaHation of $8,375 (which were not originaUy specified or instaHed but were added at the time the paneling was replaced) for a subtotal of $21,484.

These three items total $116,484, and we therefore wiU reduce the sum the Hospital is entitled to recover (by retention or otherwise) by this amount.

IV.

This brings us to what we perceive to be the fourth issue — Which defendants, if any, are liable to the Hospital for the damages above described? This we shaU break down into three subdivisions — BeHi, Corbetta and General Electric.

(a) Belli

In Section V of BeHi’s brief it contends, in substance, that it committed no tort and did not breach its contract with the Hospital to design and supervise the construction of the new hospital, and that it “in the normal course of such supervision ascertained that the General Electric Batten Panel System designated in its change order number G-33 would have to be replaced. This is not any unusual situation.”

The evidence in this case establishes that BeHi not only was IegaHy required to know but did in fact know that the Chicago Building Code required that paneling installed in such building have a “flame spread” rating of not to exceed 15; that Belli specified General Electric’s “Textolite” paneling without making any investigation whatsoever to determine whether or not it met that standard; that during the 7 months it took to install the Textolite no one at Belli discovered that said material had a flame spread 17 times the maximum and could not possibly be installed upon the walls of any hospital in Chicago; that Belli therefore made a gross error in specifying it in said change order; and that it was only the insistence of the building inspector that a certificate be filed that uncovered the fact that on one had ever bothered to procure the consent of the building department to change order G-33 as issued to Corbetta.

According to Belli’s brief, this was “commonplace practice” and should somehow be excused because, after the discoveiy of Belli’s error, it refused to issue an architect’s certificate certifying that Corbetta had properly completed its work, thus holding up the final payment to Corbetta. No cases are cited in support of this theory.

In Straus v. Buchman (1904), 96 App. Div. 270, 89 N.Y. S. 226, the plaintiff purchased a partially completed building and employed the defendants as architects to superintend and supervise the remainder of the work to be performed thereon. At the time of the purchase, a change in the plans of the building, of which the defendants were fully advised, was agreed upon between the plaintiff and his vendor, the change requiring a new support for certain tail beams. These the architects permitted to be rested on studding partitions, contrary to the requirements of a statute applicable to buildings at that place. The building when completed proved to be defective, and the plaintiff sued the defendants for his damages. In holding the defendants liable, the court said:

“* * * The placing of these timbers, and the manner in which they were secured, was not only a serious defect, but a direct violation of the statute in force at that time relating to the construction of buildings in the city of New York (section 476, c. 275, p. 547, Laws 1892), which provided that m no case shall either end of a beam or beams rest on stud partitions.’ It was the duty of the defendants, under their contract with plaintiff, not only to see that the beams were properly placed, but especially to see that the placing of them conformed to the requirements of the statute. This they failed to do.” 96 App.Div. at 273-74, 89 N.Y.S. at 229.

In Nave v. McGrane (1910), 19 Idaho 111, 113 P.82, the plaintiff, an architect, sued to recover for his services in drawing plans for a building which the defendant contemplated constructing. At the trial it was shown that the building as designed by the architect violated the building ordinances of the city where the building was intended to be erected. It was held that the architect could not recover, the court saying:

“So far as an architect is concerned, there is always an implied contract that the work shall be suitable and capable of being used for the purpose for which it is prepared. Apart from questions of public policy, this principle would prevent him from recovering upon plans and specifications prepared in violation of law, unless he was directed to so prepare them by the owner.” 19 Idaho at 128-29, 113 P. at 88.

In Scott v. Potomac Insurance Co. (1959), 217 Ore. 323, 341 P.2d 1083, an architect specified improper material (metal tubing), without ascertaining its suitability. In holding the architect liable, the court said:

“It ill behooves a man professing professional skill to say I know nothing of an article which I am called upon to use in the practice of my profession.” 217 Ore. at 334, 341 P.2d at 1088.

In 12 Vand. L. Rev. 711 (1959), in an article by Prof. George M. Bell entitled “Professional Negligence of Architects and Engineers,” it is said, at pages 715-716, under the subtitle “Liability to the Owner for a Defective building”:

“Architects and engineers hold themselves out as competent to produce work requiring: (a) skill in the preparation of plans, drawings or designs suitable for the particular work to be executed; (b) knowledge of the materials to be used and the proper application for use; (c) knowledge of construction methods and procedures. Presumably, if the architect or engineer fails to use reasonable care to produce a satisfactory structure, he may be sued either for a breach of an implied term of his contract or in negligence. * * *”

Nor can Belli avoid liability on the ground that, by refusing to issue a final certificate for payment after its error had been discovered, enough money was withheld from Corbetta to cover the loss. As we shall subsequently demonstrate, Corbetta was not itself at fault and payment to it was wrongfully withheld. The error in specifying Textolite was that of Belli; not Corbetta.

We therefore must and do hold that, although others may also be at fault, Belli, which, as architect, specified the Textolite paneling without ascertaining its flame spread rating, and permitted its installation over a period of some 7 months, is liable to the Hospital for the damages proximately flowing therefrom. We therefore conclude that the jury’s verdict for the Hospital and against Belli as to liability was and is correct and approve that verdict.

(b) Corbetta

Corbetta opens its argument that it is not liable for damages flowing from its installation of the very paneling specified in change order G-33 as follows:

“Despite the 5,000 page record, the central issue is a simple one: When an owner, through its agent architect, directs the contractor to install certain material, does not the owner impliedly warrant to the contractor that the material is suitable?”

Not only Corbetta but the other parties seem to have overlooked the fact that said change order was signed not only by Belli, as the Hospital’s architect, but by the Hospital itself in the person of Sister Vincent, its administrator, so that Corbetta’s said initial inquiry could better have been worded as follows:

“Where an owner, through its architect and the Sister who administered the hospital, issued a change order which specified that a particular material be installed, does not such owner warrant that said material is suitable?”

In 6 Corbin on Contracts § 1338 at 394 (1962), it is said:

“If the destruction of the partly completed structure or the defects in it when completed are caused by the representations of the owner on which the contractor reasonably relied, or by defects in plans and specifications supplied by the owner which the contractor was required to follow, the contractor will not be liable in damages for nonperformance and will not be denied a judgment for compensation. In such a case the nonperformance is caused by the owner and is not a breach of contract.”

and in 6 Wifliston, Contracts 5518 (rev. ed. 1938) it is said:

“Though the builder may be liable if he fails, by reason of defective plans furnished him, to complete work which he has undertaken, yet if he can and does complete it according to the plans he is not liable for subsequent inferiority, injury, or destruction of the work, due to the defective character of the plans.”

In 6 A.L.R. 3d, in an annotation entitled “Construction Contractor’s Liability to Contractee for Defects or Insufficiency of Work Attributable to the Latter’s Plans and Specifications,” in § 2, at pages 1397-1398, it is said:

Ҥ 2. Rule that contractor is not liable

While a distinction between completed and uncompleted work with reference to the applicability of the rule has been drawn in a few jurisdictions, the rule has become well settled in practically every American jurisdiction in which the matter has been involved, that a construction contractor who has foUowed plans or specifications furnished by the contractee, his architect, or engineer, and which have proved to be defective or insufficient, wiU not be responsible to the contractee for loss or damage which results, at least after the work is completed, solely from the defective or insufficient plans or specifications, in the absence of any negligence on the contractor’s part, or any express warranty by him as to their being sufficient or free from defects.”

citing, inter alia:

“Ill—Clark v. Pope (1873 ) 70 Ill 128; Sperry v. Fanning (1875) 80 Ill 371; R. F. Conway Co. v. Chicago (1916 ) 274 Ill 369, 113 NE 703.”

In Clark, our supreme court, at page 132, said:

“When it shall be established the building was constructed in a workmanlike manner, after the plans furnished, or, if there was any material deviation, it was made with the knowledge and consent of the committee, there would be no responsibility rest-on the contractors, no matter from what cause it was destroyed, whether from its own inherent weakness in the mode of construction, or from the extraordinary violence of the storm. Their undertaking was simply to do the work with reasonable skiH, after the designs furnished by the architects. They were not guarantors as to the strength of the edifice when finished, or its capacity to withstand the violence of the winds.”

In Conway, in reversing the dismissal of a suit by a contractor against the city on a paving contract, where, because of faulty plans and specifications furnished by the city, the finished street proved to be unsatisfactory, our supreme court, at page 377, said:

«# « e The contract is not merely to do a particular thing but to do it in a particular way, using specified materials in accordance with the plans and specifications, which are to be the sole guide. The contractor had no discretion as to materials to be used or the manner in which the work was to be done. * * *”

Other Illinois cases to the same effect are: MacRitchie v. City of Lake View (1889), 30 Ill.App. 393, 398; Ruddy v. McDonald (1910), 244 Ill. 494, 498-499, 91 N.E. 651; Woodley v. Zeman (1913), 178 Ill.App. 369, 371.

To the same effect in other jurisdictions see MacKnight Flintic Stone Co. v. Mayor (1899), 160 N.Y. 72, 54 N.E. 661, 664; Penn Bridge Co. v. City of New Orleans (5th Cir. 1915), 222 F. 737, 742; United States v. Spearin (1918), 248 U.S. 132, 136, 63 L.Ed. 166, 39 S.Ct. 59; Ham-maker v. Schleigh (1929), 157 Md. 652, 147 A. 790, 795; Trustees of the First Baptist Church v. McElroy (1955), 223 Miss. 327, 78 So. 2d 138; and Corporation of Presiding Bishop v. Cavanaugh (1963), 217 Cal. App.2d 492, 32 Cal. Rptr. 144, 153.

In passing, we should mention Corbetta’s argument that Belli, under the contract in this case, was the Hospital’s “exclusive agent,” whose acts, at least as between the Hospital and Corbetta, were binding upon the Hospital. While we fully agree with this contention, it is really not necessary to reach it, first, because the Hospital’s administrator Sister Vincent herself also signed the change order; and, second, because, in most of the cases above cited, the defective plans and specifications causing the difficulty were issued by the owner’s architect, not the owner, and yet the court in such cases held that the owner was bound and that the contractor who followed them was not liable to the owner.

Unless other considerations are here present sufficient to alter our thinking, the foregoing would lead us to conclude that the answer to Corbetta’s said inquiry is “yes” and that it is not hable for the damages flowing from its having installed the precise material specified in change order G-33, signed by the Hospital’s architect Belli and by the Hospital’s then Administrator, Sister Vincent.

The Hospital contends, however, that a different result should prevail here because the agreement between it and Corbetta contained the following provisions:

“Article 4. Contractor further agrees to save and hold harmless Owner and Architect of, from and against any and all losses, damages, costs and expenses including court costs and attorneys’ fees incurred and paid by Owner and Architect, or either of them arising out of, or in connection with any and all acts or omissions of Contractor, any subcontractors of Contractor and all employees, representatives and agents of Contractor and subcontractors. * * *

Article 5. Contractor agrees to guarantee his work against all defects in materials and workmanship for a period of two years from date of completion as evidenced by the issuance of the final Architect’s Certificate.”

The flaw in this contention is that what the Hospital is in reality urging is that the above quoted language be construed to require Corbetta to indemnify it (and Belli) against the proximate results of what it (and Belli) had expressly and precisely ordered Corbetta to do— viz.: to install General Electric’s Textolite wall paneling on the walls and corridors of the hospital. All that Corbetta did was to carry out that explicit order.

To require Corbetta to indemnify the Hospital and Belli for doing what they precisely had ordered it to do would in our opinion, be even more unfair than to hold that Corbetta must, on the basis of the above quoted language, indemnify the Hospital (and Belli) for their own mere negligence.

But it is the law in Illinois that an indemnity contract will not be construed as indemnifying one against his own negligence unless such a construction is required by clear and explicit language of the contract.

The basic Illinois case in this area is Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp. (1947), 395 Ill. 429, 70 N.E.2d 604, where our supreme court, at pages 433-434, said:

“It is quite generally held that an indemnity contract will not be construed as indemnifying one against his own negligence, unless such a construction is required by clear and explicit language in the contract, (Sinclair Oil Co. v. Thornley, 127 Fed. 2d 128; Doughnut Machine Corp. v. Bibbey, 65 Fed. 2d 634,) or such intention is expressed in unequivocal terms. Thompson-Starrett Co. v. Otis Elevator Co. 271 N.Y. 36, 2 N.E.2d 35; Employers Liability Assur. Corp. Ltd. of London Eng. v. New York Linen Supply & Laundry Co. 239 N.Y. 560, 147 N.E. 195; Manhattan Railway Co. v. Cornell, 54 Hun. 292, 7 N.Y.S. 557, affirmed in 130 N.Y. 637, 29 N.E. 151.”

In Mesker Bros. Iron Co. v. Des Lauriers Column Mold Co. (1972), 8 Ill.App.3d 113, 289 N.E.2d 223, this court, after citing and quoting from Westinghouse, at page 116, concluded as follows:

“Defendant correctly points out that to enforce the indemnity clause as plaintiff suggests would make defendant responsible even for plaintiffs total failure to perform under its contract with F & S. Therefore, we hold that unless the terms of the indemnity clause clearly provide that a sub-contractor is to assume the risk of negligent manufacture of materials supplied by his contractor, the indemnity clause should not be construed to include such a risk. The damage here resulted not from any negligence in the installation of the materials, but the defective manufacture of such materials by the plaintiff, and since the clause in question does not expressly provide that defendant is to assume such risk, the plaintiff is not entitled to indemnification for the resultant damage.”

In Tatar v. Maxon Construction Co. (1973), 54 Ill.2d 64, 294 N.E.2d 272, in affirming a judgment that no indemnity was provided, our supreme court, at pages 67-68, said:

“The leading case in this jurisdiction on the question involved here is Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp., 395 Ill. 429, in which the court said at page 432: ‘It is a general rule governing the construction of contracts that unless a contract is ambiguous, its meaning must be determined from the words used; and the courts will not, because a more equitable result might be reached thereby, construe into the contract provisions that are not therein.’ The court further said, ‘It is quite generally held that an indemnity contract will not be construed as indemnifying one against his own negligence, unless such a construction is required by clear and explicit language of the contract [citations], or such intention is expressed in unequivocal terms.’ 395 Ill. at 433.

We have examined the authorities cited by the parties and many of those collected at 27 A.L.R.3d 663, and conclude that the contractual provisions involved are so varied that each must stand on its own language and little is to be gained by an attempt to analyze, distinguish or reconcile the decisions. The only guidance afforded is found in the accepted rule of interpretation which requires that the agreement be given a fair and reasonable interpretation based upon a consideration of all of its language and provisions.

The indemnity agreement provides that Freesen will indemnify Maxon ‘against all expenses, claims, suits, or judgments of every kind whatsoever * * * by reason of, arising out of, or connected with, accidents, injuries, or damages, which may occur upon or about the Subcontractor’s work.’ The provision for insurance requires Freesen to maintain policies ‘such as will protect the Subcontractor, the General Contractor * # * from claims for damage to property, and injury to persons, * * * which may arise out of Subcontractor’s work.’ Although the indemnity agreement is clearly intended to be less restrictive than the provision for liability insurance, we conclude that when measured against the standards set forth in Westinghouse, it does not, under the circumstances alleged in the pleadings, provide indemnity against claims arising out of Maxon’s own negligence, and the judgment of the appellate court is, accordingly, affirmed.”

And in Hulse v. Midwest Emery Freight Systems. Inc. (1973), 12 Ill. App.3d 316, 299 N.E.2d 24, the Appellate Court for the Fourth District, in reversing a judgment that the express indemnity constituted an undertaking to indemnify against a party's own negligence, at page 318, said:

“If, as is argued, the contract terms constitute a hold harmless agreement or an exculpatory agreement, the same result obtains. In Tatar v. Maxon Construction Co., Inc., 3 Ill.App.3d 352, 277 N.E.2d 715, aff’d. 54 Ill.2d 64, 294 N.E.2d 272, we observed that exculpatory clauses in contracts or language in contracts whereby a tort feasor seeks to excuse or transfer liability for his own wrongful or tortious act were not favored and such would be strictly construed. The operative language in this agreement under such construction does not obligate the plaintiff to pay for damages to the trailer occasioned by the defendant. Rather, the contract language relates to the obligation of the defendant to pay routine costs and damage to the equipment. Such cannot be construed as to be an undertaking by the plaintiff to exculpate the defendant from its own tortious conduct nor intentionally inflicted damage. (See Leach v. Eychaner, 1 Ill.App.3d 327, 273 N.E.2d 55; Moss v. Hunding, 27 Ill.App.2d 189, 169 N.E.2d 396.) * * *”

Viewing the language above quoted from Articles 4 and 5 of the contract between the Hospital and Corbetta in the light of these cases, we conclude that they do not make Corbetta hable to the Hospital (or to Belli) for the disastrous eventual results of Corbetta’s installing on the walls of the hospital precisely what the Hospital (and Belli) had ordered it to install.

The Hospital also contends that a difficult result should obtain here because Article 12 of the contract between it and Corbetta (quoting from the Hospital’s brief) required Corbetta:

“to comply with all ordinances, codes, etc., and to be responsible to plaintiff for all damages caused by violation of any such codes.”

This is in substance but another version of its earlier contention that the quoted language requires Corbetta to indemnify the Hospital for damages proximately flowing from Corbetta’s doing precisely what the Hospital (and Belli) had ordered it to do. We do not so construe said language.

Furthermore all parties (including the Hospital) are legally subject to such codes and, as the Hospital’s own brief well puts it: “Ignorance of the law excuses no one.”

The Hospital also argues that a different result should prevail here because, in January of 1963, before the installation, Mr. Derbyshire of General Electric wrote Mr. Egidi of Corbetta that its Batten Panel System “did not carry a flame spread rating of any kind” and that “we can supply a UL flame spread panel but not on the terms and drawings submitted in connection with the contract.”

In the first place, General Electric did not, at that time (or now), have a paneling which met the maximum of 15 set in the Chicago Code. In the second place, information to the effect that General Electric’s Batten Paneling Sysem did “not carry a flame spread rating of any kind” was nothing new in that all of the parties, including the Hospital and its architect Belli, had long known that, and Belli had already taken the position that this was of no concern to anyone other than himself and that the plans for the hospital had already been approved by the city. Had General Electric in said letter warned Corbetta and the others (as was the fact) that said paneling had a flame spread rating some 17 times that permitted under the Code, a far different issue would have been here presented.

We therefore conclude that Corbetta is, as a matter of law, not liable for such damages as here flowed from its having installed on the walls of the hospital the precise paneling specified in change order G-33 signed by Belli, the Hospital’s architect, and by Sister Vincent, its administrator. We therefore set aside the jury’s verdict to the contrary.

(c) General Electric

General Electric opens its argument that it is not liable for the damages flowing from Corbetta’s installation of General Electric’s “Textolite” paneling on the walls of the hospital in the following language:

“* * * It is the position of GE that the Hospital was not a third party beneficiary of its contract with Corbetta. But even if the Hospital was a third party beneficiary, it is still not entitled to any recovery since GE did not breach its contract with Corbetta but, rather, in accordance with the contract, it gave notice that its batten panel system was fire rated and that if a flame spread rated system was required the project would have to be reengineered and repriced.

If GE is held to be liable to the Hospital it is still not entitled to judgment since it suffered no damages because the amount withheld by the Hospital under its contract with Corbetta more than covered the costs of the removal and replacement of the GE paneling. * * *”

Disposing of the last contention first, it is without merit in this case inasmuch as we have heretofore held that Corbetta is not liable for any of the Hospital’s damages and, as we shall hereinafter demonstrate, is therefore entitled to recover that “hold back,” from the Hospital.

We do not reach or decide whether the Hospital is or is not a third-party beneficiary, in the traditional Lawrence v. Fox sense of the contract between General Electric and Corbetta. Although the contention and the Hospital’s response thereto are interesting and ingenious, we prefer, instead, to base our holding that General Electric is liable to the Hospital on other grounds.

Over and over, both in the trial court and in its brief and argument here, General Electric reiterates that:

“We warned the parties involved that Textolite was not rated.”

On August 28, 1962, a series of flame spread tests were made at the Underwriters Laboratories in Northbrook. Herbert Day, an employee of General Electric, was there. The tests were performed by Walter Haas of Underwriters and seven different products were tested. General Electric’s product Textolite (the same as was here installed) was placed in one of the tunnels and the fire turned on. The test lasted only 2 minutes and 16 seconds because by then the flames had traversed the entire (25 feet) length of the tunnel and the sample of Textolite was removed with its surface completely charred. That concluded the test and the flame spread was calculated at 254.6 or 255. The Textolite had the highest flame-spread rating of any of the products tested that day.

On August 31, 1962, Day reported to General Electric by a letter addressed to Mr. Thomas, with copies to Mr. Derbyshire of General Electric, and others. Haas, of Underwriters, explained the nature of the test and the result of the test on Textolite and said that the product was not given a flame-spread rating because they felt that no product testing out over 200 should be given a rating because it would be highly inflammable and dangerous.

On October 26, 1962, 2 months after said test, General Electric entered into its subcontract with Corbetta for the installation of this highly inflammable material on the walls of the plaintiff’s hospital in Chicago. No one other than General Electric knew at that time of the disastrous results of this test.

In December of 1962, representatives of General Electric, including Derbyshire, and of Corbetta met and discussed further the installation of Textolite in the plaintiff’s hospital. Again, Derbyshire said nothing of the results of said test to Corbetta’s representatives, or even to Warner, his own salesman.

On January 3, 1963, Derbyshire wrote Mr. Egidi, of Corbetta, as follows:

“Further at this time I wish to point out that our Batten Panel System does not carry a flame spread rating of any kind. I have brought up the need of a fire rating of this System in several of our initial discussions and again on December 12, 1962. I have been told that it was none of our concern and that everything was taken care of in this respect. Nowhere is a rating mentioned in the specification. If we now find that our System must have a flame spread rating, then our contracted price no longer can apply. We must at this point reevaluate the requirements and re-engineer the paneling and pricing accordingly.

We can supply a U-L flame spread rated panel but not under the terms and drawings submitted in conjunction with the contract.”

It should be noted that, again, the fact that the Textolite paneling had actuafly been flame tested and had tested out a disastrous 17 times the maximum permitted under the Code is masked and concealed. Rather, it was a “coverup.” Furthermore, General Electric did not then have (nor has it had since) a wall paneling meeting the flame-spread test fixed in the Chicago Code.

Since, as the letter on its face recites, the lack of a flame-spread rating was “old stuff” and the architect BeUi had already told the others it was none of their concern and that everything had been taken care of, Egidi did nothing about it and General Electric drew up the plans and specifications and the project went on to completion. The actual instaUation of the Textolite took place from September of 1963 to April of 1964. During these 7 months, the same H. P. Thomas of General Electric, to whom Mr. Day’s report concerning the disastrous result of the Underwriters Laboratory test of August 28, 1962, had been directed, was on the job daily supervising the installation of the same Textohte covered by that report. But during that period, neither Thomas nor Derbyshire ever mentioned to any of the others here involved the results of that test. The results of that test were not disclosed to others until April of 1964, after the installation had been completed.

In view of these facts, we agree, as it said in plaintiff’s (and Corbetta’s) brief, that:

“Regardless of how many times General Electric might say, either orally or in writing, that ‘Our material is not flame rated,’ the statement is still a ‘gross deception’ covering up the real truth namely that General Electric was proposing for installation in this hospital a material which it actually knew was utterly unfit for use in such an institution.”

Under these facts, we are of the considered opinion that General Electric is hable to the Hospital on the basis of fraud and deceit in not disclosing that its said paneling had actually been tested by Underwriters Laboratory and had been found to have a flame spread 17 times the maximum under the Chicago Building Code; which theory does not require privity in the traditional sense.

(i)

It is well established that a statement which is technically true as far as it goes may nevertheless be fraudulent, where it is misleading because it does not state matters which materially qualify the statement as made. In other words, a half-truth is sometimes more misleading than an outright lie.

In 37 Am. Jur. 2d Fraud and Deceit § 183 (1968), it is said, at page 246:

“* * * It is an old adage that half a truth is a lie. Thus, a statement which is technicaUy true in fact as far as it goes may also be fraudulent, where it is misleading because it does not include aU the material facts.”

In 37 C.J.S. Fraud § 16 (1943), it is said, at page 247:

“* * # One conveying a false impression by the disclosure of some facts and the concealment of others is grdlty of fraud, even though his statement is true as far as it goes. Such concealment is in effect a false representation that what is disclosed is the whole truth.”

To the same effect, see Prosser’s Handbook on the Law of Torts (4th ed. 1971) §106, at 695-696; Harper and James, Law of Torts §§7.13, 7.14, at 585-587 (1956); Restatement of Torts § 529, at 67 (1938); 19 I.L.P. Fraud § 11, at 570 (1956).

For cases so holding (chronologically arranged), see Newell v. Randall (1884), 32 Minn. 171, 19 N.W. 972, 973; Equitable Co. v. Halsey Stuart & Co. (1941), 312 U.S. 410, 425-426, 61 S.Ct. 623, 85 L.Ed. 920; Parker v. Title Trust Co. (9th Cir. 1956), 233 F.2d 505, 510-511; Mid-States Insurance Co. v. American Fidelity & Casualty Co. (9th Cir. 1956), 234 F.2d 721, 729; Harkins v. Fielder (1957), 150 Cal.App.2d 528, 310 P. 2d 423, 429; Doran v. Midland Development Company (1958), 159 Cal.App.2d 322, 323 P. 2d 792; M. G. Chamberlain & Company v. Simpson (1959), 173 Cal.App.2d 263, 343 P. 2d 438, 446; Gerstle v. Gamble-Skogmo, Inc. (E.D.N.Y. 1969), 298 F. Supp. 66, 95; Elizaga v. Kaiser Foundation Hospitals, Inc. (1971), 259 Ore. 542, 487 P.2d 870; McGlothlin v. Nichoalds (D.C. Colo. 1962), 212 F. Supp. 757, 761; Krause v. Eugene Dodge, Inc. (1973),-Ore. -, 509 P. 2d 1199, 1208.

(ü)

It is also weH estabhshed that where one has made a statement which at that time is true but subsequently acquires new information which makes it untrue or misleading, he must disclose such information to anyone whom he knows to be acting on the basis of the original statement — or be guilty of fraud or deceit.

In 37 Am. Jur. Fraud and Deceit § 184 (1968), it is said, at page 247:

9 # One who knows that a statement true when made has become false has a duty to disclose the changed conditions to the representee before he acts on it. ° * *”

In 37 C.J.S. Fraud (1943), it is said, in section 16, at page 245:

“Representations subsequently found false by maker. One making a representation which he believed to be true, but subsequently found to be false, is liable in fraud for failure to correct the statement, unless he did not discover its falsity until after the bearer had acted thereon.”

To the same effect see Prosser’s Handbook on the Law of Torts § 106, at 696-697 (4th ed. 1971); Harper and James, Law of Torts §7.14, at 589 (1956); Restatement of Torts § 551, at 117-118 (1938); 19 I.L.P. Fraud § 11, at 570 (1956).

For cases so holding (chronologicaUy arranged), see: Loewer v. Harris (2d Cir. 1893), 57 F. 368, 373; Porter v. Beattie (1894), 88 Wis. 22, 59 N.W. 499, 503; Chilson v. Houston (1900), 9 N.D. 498, 84 N.W. 354, 356; Holt v. King (1903), 54 W.Va. 441, 47 S.E. 362, 365; Atlas Shoe Co. v. Bechard (1906), 102 Me. 197, 66 A. 390, 393; Noble v. Renner (1916), 177 Iowa 509, 159 N.W. 214, 216; Maxwell Ice Co. v. Brackett, Shaw & Lunt Co. (1921), 80 N.H. 236, 116 A. 34, 36; Fruit Dispatch Co. v. Wolman (1925), 124 Me. 355, 128 A. 740; Hush v. Reaugh (E.D. Ill. 1938), 23 F. Supp. 646, 652; Koch v. Williams (1961), 193 Cal.App.2d 537, 14 Cal. Rptr. 429, 431; Guastella v. Wardell (Miss. 1967), 198 So. 2d 227, 230; Fischer v. Kletz (S.D. N.Y. 1967), 266 F. Supp. 180, 188.

Illinois foUows this Une of cases. In Rozny v. Marnul (1969), 43 Ill.2d 54, 250 N.E.2d 656, our supreme court, citing Fischer (the last case above cited), at page 67, said:

“* * * The basis of liability in Fischer was defendant’s faUure to disclose after-acquired information which invahdated the accuracy of facts earher certified to be correct. (Cf. Drake v. Thor Power Tool Co. (N.D. Ill. 1967), 282 F. Supp. 94.) * * *”

(iii)

It is also weU established that in fraud cases based on misrepresentation it is not a prerequisite to recovery that there be privity, at least in the traditional sense. It is enough that the statements by the defendant be made with the intention that it reach the plaintiff and influence his action and that it does reach him and that he does rely upon it, to his damage.

In Harper and James Law of Torts § 7.2 (4th ed. 1956), it is said at page 531:

* * Nor is it necessary that the misrepresentation be made by the defendant directly to the person or class of persons whom he intends to take action in reliance thereon. The misrepresentation may be made through a third person with the intention that it be repeated or passed on to one or more persons. * * *”

In 37 Am. Jur. 2d Fraud and Deceit § 190 (1968), it is said, at pages 252-253:

§ 190. Representations made directly or indirectly.

While some connection, direct or indirect, between a party charged with making false representations and a party relying thereon must be shown, it is not essential, in support of a cause of action for damages resulting from false representations, that the false representations be shown to have been made directly to the party claiming to have relied upon them. It has been repeatedly held that where a party makes false representations to another with the intent or knowledge that they be exhibited or repeated to a third party for the purpose of deceiving him, the third party, if so deceived to his injury, can maintain an action in tort against the party making the false statements for the damages resulting from the fraud. Such holdings conform to the principle that the rule that representations must have been intended to influence the complaining party is equally applicable whether they are made to him directly or indirectly. * * •”

To the same effect, see Restatement of Torts § 533 at 77 (1938); 19 I.L.P. Fraud § 17, at 581-582 (1956).

For cases so holding (chronologically arranged), see Nathanson v. Murphy (1955), 132 Cal. App. 2d 363, 282 P.2d 174, 178; Simone v. McKee (1956), 142 Cal. App. 2d 307, 298 P. 2d 667, 671-672; Odell v. Frueth (1956), 146 Cal. App 2d 504, 304 P. 2d 45, 48-49; Harkins v. Fielder (1957), 150 Cal. App. 2d 528, 310 P. 2d 423, 429; Granberg v. Turnham (1958), 166 Cal. Supp. 2d. 390, 333 P. 2d 423, 428; Harold v. Pugh (1959), 174 Cal. App. 2d. 617, 345 P. 2d 112, 115; Massei v. Lettunich (1967), 248 Cal. App. 2d 68, 56 Cal. Rptr. 232, 235.

Illinois follows this line of cases. In Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656, a judgment was entered against the defendant Marnul who had prepared a land survey for a real estate developer, who sold the property to a builder from whom the plaintiffs purchased the improved property. The survey was passed on to a savings and loan association where the plaintiffs saw and relied on it in making the purchase, as did the savings and loan in making the loan. The survey was inaccurate and, as a result, the plaintiffs’ house and garage had to be relocated, at a cost of $13,350. In affirming the judgment of the trial court, even though there was no privity in the traditional sense, our supreme court, at pages 61-62 and 67, said:

“Section 402B and a parallel rule relating to pecuniary loss were adopted by the Tennessee Supreme Court in the recent case of Ford Motor Co. v. Lonon, 217 Tenn. 400, 398 S.W.2d 240. After stating that ‘the decision in the present case is based upon the ground that the manufacturer has committed the tort of misrepresentation rather than a breach of warranty * ** *’ the court noted that it was not necessary to deal with the privity requirement traditional in contractual warranty cases. “Where * # ”

plaintiff can establish representations to the public, justifiable reliance on these representations, and the other matters necessary to bring his case under the rules developed in 2 Restatement (Second) Torts, §402B and a parallel rule concerning pecuniary loss we consider that recovery is justified, both for physical and pecuniary loss, on grounds of misrepresentation, even though there is no direct contract relationship between the parties.’ 398 S.W.2d at 248.

This process of adhering to or eliminating the privity requirement has proved to be an unsatisfactory method of establishing the scope of tort liability to third persons. Because of the difficulties in applying the rule, courts created exceptions deemed necessary to achieve desirable results which were not always completely reconcilable. (See Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N.W.2d 873, 878.) To eliminate any uncertainty still remaining after Suvada v. White Motor Co., 32 I11.2d 612, 617, we emphasize that lack of direct contractual relationship between the parties is not a defense in a tort action in this jurisdiction. Thus, tort liability will henceforth be measured by the scope of the duty owed rather than the artificial concepts of privity.

# # #

In the case before us the fact that those who subsequently dealt with the property would rely on the plat was not only foreseeable, it was, by defendant’s own testimony, known to him.”

We therefore conclude that General Electric, under the facts of this case, is liable to the Hospital on the basis of fraud and deceit in not disclosing that its said paneling had actually been tested by the Underwriters Laboratory and had been found to have a flame spread 17 times the maximum under the Chicago Building Code. Not only did General Electric fail to advise the others of said change but, as it says again and again in its current brief, it repeated its earlier (misleading) statement that its paneling “did not carry a flame spread rating of any kind.”

A little plain honesty at this point on the part of Derbyshire of General Electric would have alerted the others to the red flag fact that its paneling could not possibly be used in any large hospital in Chicago.

We, therefore hold that the jury’s verdict in favor of the Hospital and against General Electric as to liability was and is correct and affirm the verdict.

V.

This brings us to what we perceive to be the fifth general problem— Are any of the defendants entitled to be indemnified by one or more of the other defendants, on the basis of express agreement or on an active-passive basis?

Express Indemnities

As we have already demonstrated at some length, under IV (b) above, by the citation of and quotations from a number of Illinois cases, it is the law in Illinois that a contract will not be construed as indemnifying one against his own negligence (and by analogy, against the results of an act ordered by him) unless such a construction is required by clear and explicit language in the contract.

Active-Passive

A recent case in this area is Carver v. Grossman (1973), 55 Ill.2d 507, 305 N.E.2d 161, where our supreme court, at pages 510-512, said:

“Illinois has long adhered to the rule that there can be no contribution among joint tortfeasors. (See Nelson v. Cook (1856), 17 Ill. 443; Johnson v. Chicago and Pacific Elevator Co. (1882), 105 Ill. 462; Skala v. Lehon (1931), 343 Ill. 602; Miller v. DeWitt (1967), 37 Ill.2d 273.) The wisdom of the rule and the reason for its continuance have been severely questioned. (See Sargent v. Interstate Bakeries, Inc., 86 Ill.App.2d 187; Moroni v. Intrusion-Prepakt, Inc., 24 Ill.App.2d 534; Prosser, Handbook of the Law of Torts (4th ed. 1971), sec. 50.) Whether the time has arrived or conditions are ripe for a modification of this rule through judicial decision or legislative enactment is a question not relevant to a decision in this case. (For a discussion of legislative changes in the rule in other jurisdictions, see Prosser, Handbook of the Law of Torts (4th ed. 1971), sec. 50; see also, Uniform Contribution Among Tortfeasors Act (1955), 9 U.L.A. 1967 Pocket Part 127.) The theory of impfied indemnity has been appfied judiciaHy to mitigate the harsh effect that could result from an inflexible application of the rule which prohibits contributions. (Muhlbauer v. Kruzel, 39 Ill.2d 226, 230; see also Gertz v. Campbell, 55 Ill.2d 84.) We are called upon by the third-party complaint in this case to again apply the theory of implied indemnity.

This theory has been used to cover a variety of situations (see Feirich, Third-Party Practice, 1967 U. Ill. L. F. 236, 242). Where indemnity has been allowed the conduct of the indemnitor has usually been characterized as the primary cause or active negligence while that of the indemnitee has been characterized as the secondary cause or passive negligence. (Chicago and Illinois Midland R Ill.2d 600.) In this case the third-party plaintiff, Grossman, has chosen to characterize the conduct of the third-party defendant, Bishop, as active negligence and that of the decedent, Putnam, whose estate he is administering, as passive negligence. Although these terms have not obtained precise judicial definition, previous decisions fairly well delineate the areas wherein conduct may be termed active or passive negligence.

Consideration must also be given to section 25(2) of the Civil Practice Act concerning third-party proceedings which states: ‘Nothing herein * * * creates any substantive right to contribution among tortfeasors # # which has not heretofore existed.’ (Ill. Rev. Stat. 1969, ch. 110, par. 25(2).) In light of this statutory language and the general rule against contribution the facts of the case must clearly justify indemnification. If they do not, the net effect of the application of the implied indemnity theory will be not only to allow contribution but to permit the total shifting of responsibility to one negligent party while permitting the other to totally escape the responsibility for his negligent conduct.”

In Moody v. Chicago Transit Authority (1974), 17 Ill.App.3d 113, 307 N.E.2d 789, this court, through Mr. Justice Goldberg, at page 117, stated:

“Determination of this question is not a matter of proceeding according to the usual dictionary definitions of the words ‘active’ and ‘passive’. These words are terms of art and they must be applied in accordance with concepts worked out by courts of review upon a case by case basis. Under appropriate circumstances, inaction or passivity in the ordinary sense may well constitute the primary cause of a mishap or active negligence (Topel V. Porter, 95 Ill.App.2d 315, 330, 237 N.E.2d 711). It has been appropriately stated that ‘mere motion does not define the distinction between active and passive negligence.’ (Trzos v. Berman Leasing Co., 86 Ill.App.2d 176, 183, 229 N.E.2d 787.) In the case before us, we have reached the conclusion that the contentions advanced by each party against the other are equaUy valid and forceful and that both are guilty of active negligence. The contributions of both parties to cause the mishap were of equal significance. There is no ‘qualitative distinction between the negligence of the two’ counterclaimants. (See specially concurring opinion in Gertz v. Campbell, 55 Ill.2d 84, 93, 94, 302 N.E.2d 40.) The conduct of each was ‘the primary cause or active negfigence.’

It foHows necessarily that neither Silvercup nor G.T.A. may have indemnification against the other. This principle has been expressed and repeated in a number of cases. See Stewart v. Mister Softee of Illinois, Inc., 75 Ill.App.2d 328, 330, 221 N.E.2d 11. See also Gillette v. Todd, 106 Ill.App.2d 287, 294, 245 N.E.2d 923 cited in Carver v. Grossman, supra.”

In applying these principles to the facts of this case, we shaH, again, break our analysis down into three divisions, Belfi, Corbetta and General Electric.

For Belli

(a) Against Corbetta

BelH’s contention that Corbetta expressly agreed to indemnify BelH (as architect) is based on Article IV in the contracts between Corbetta and the Hospital (Hospital Exs. 3 and 4) which provides as follows:

“Contractor further agrees to save and hold harmless Owner and Architect of, from and against any and all losses, damages, costs and expenses, including court costs and attorneys’ fees, incurred and paid by owner or either of them, arising out of or in connection with any and all acts or omissions of contractor, any subcontractor of contractor and aH employees, representatives and agents of contractor and subcontractors. The fact that any claim or suit may be made or filed against owner and architect or either of them without such claim or suit being made or filed against contractor or his subcontractors shall not affect the fiabffity of contractor hereunder.”

Since we have already held that Corbetta, in furnishing and instaHing in the hospital precisely what BelH and the Hospital through Sister Vincent had ordered Corbetta to furnish and instaU did not breach any contract and was not guilty of any “omission,” this provision, in view of the facts of this case and in the light of the authorities above cited and discussed, does not, support. BeUfs contention. Here BelH is, in reality, asking that Corbetta be required to indemnify Belli for its own carelessness. Belli, not Corbetta, selected the Textolite wall paneling and we can perceive no fust reason why Corbetta should have to bail it out. The same reasoning disposes of Belli’s argument that Corbetta should be required to indemnify it on a active-passive basis.

(b) Against General Electric

Belli makes no contention that General Electric expressly agreed to indemnify it and bases its entire argument on an active-passive theory.

Belli’s argument would be far more convincing had Belli’s Anthony Belli not repeatedly told Derbyshire of General Electric that flame spread was none of their concern.

Basically Belli is asking that General Electric be required to indemnify it for its own carelessness. We decline to do so. Here, it seems to us, the pot is calling the kettle black.

For Corbetta

Since we have already held that Corbetta is not hable to the Hospital, Corbetta needs no indemnity.

For General Electric

(a) Against Belli

General Electric does not base its claim for indemnity against Belli on any express indemnity and bases its entire argument on an active-passive theory. Again (as in our discussion of Belli’s claim for indemnity above), this is a case of a pot calling a kettle black. Here one who sold paneling which it knew was not in any possible way suitable for use in a hospital and which concealed the intervening fact that said paneling had actually been tested by Underwriters Laboratory and found to be 17 times as flammable as the maximum under the Chicago Code, asks us to require the architects, who carelessly ordered it installed in the hospital, to bail them out. We decline to do so.

(b) Against Corbetta

General Electric does not contend that Corbetta expressly agreed to indemnify it and bases its entire argument on an active-passive theory. Inasmuch as we have already held that Corbetta did nothing except to install what Belli and the Hospital had ordered it to install and is not liable for doing so, and have already held that General Electric not only impliedly warranted that its Textolite paneling was suitable for use in a large city hospital (which it was not) but was guilty of fraud and deceit in not revealing (as was the fact, known only to it) that said paneling had actually been tested by Underwriters Laboratory and had been found to be 17 times as flammable as the Code permitted, we perceive no just reason why Corbetta should be required to bail General Electric out of the situation in which it now finds itself.

We therefore conclude and hold that no defendant was or is entitled to be indemnified by any other defendant on any basis, and we therefore affirm the trial court’s holding to the same effect.

VI.

This brings us to what we perceive to be the sixth main issue— Whether the Hospital is entitled to recover its attorneys’ fees and expenses from any one or more of tire defendants?

One of the clearest statements of the Illinois law on this subject is found in Ritter v. Ritter (1943), 381 Ill. 549, 46 N.E.2d 41, where, in reversing a judgment for attorney’s fees and expenses in favor of a successful litigant, our supreme court at page 553, said:

“The rule is also well established that attorney fees and the ordinary expenses and burdens of litigation are not allowable to the successful party in the absence of a statute, or in the absence of some agreement or stipulation specially authorizing the allowance thereof, and this rule applies equally in courts of law and in courts of equity. (Constant v. Matteson, supra; Comvell v. Mc-McCowan, supra; Hutchinson v. Hutchinson, supra; Rasch v. Rasch, 278 Ill. 261; Kinane v. Fay, 168 Atl. (N.J.) 724; Weinhagen v. Hayes, 190 N.W. (Wis.) 1002; Day v. Woodworth, 14 L.ed. 181.)”

To the same effect see 15 I.L.P. Damages § 62, at 398 (1968); 25 C.J.S. Damages §50 (1966); and (chronologically arranged) Constant v. Matteson (1859), 22 Ill. 546, 560; Conwell v. McCowan (1870), 53 Ill. 363, 364; Hutchinson v. Hutchinson (1894), 152 Ill. 347, 355, 38 N.E. 926; Washburne v. Burke (1899), 84 Ill.App. 587, 589; First National Bank v. Fidelity & Deposit Co. (1902), 106 Ill.App. 367, 374; Rasch v. Rasch (1917), 278 Ill. 261, 275, 115 N.E. 871; In re Estate of Riekan (1926), 241 Ill.App. 235, 238; Chicago Coliseum Club v. Dempsey (1932), 265 Ill.App. 542, 552; Boss v. Coe Investment Co. (1964), 45 Ill.App.2d 417, 420-422, 195 N.E.2d 735; People ex rel. Horwitz v. Canel (1966), 34 Ill. 2d 306, 308, 215 N.E.2d 255; Sentry Royalty Co. v. Craft (1967), 79 Ill. App.2d 410, 420, 226 N.E.2d 282; People ex rel. Henderson v. Redfern (1968), 104 Ill.App.2d 132, 136, 243 N.E.2d 252; House of Vision, Inc. v. Hiyane (1969), 42 Ill.2d 45, 51-52, 245 N.E.2d 468; Trustees of Schools v. Schroeder (1972), 8 Ill.App.3d 122, 125-126, 289 N.E.2d 247.

Let us now apply these principles to the facts of this case, again breaking our discussion down into three subdivisions, Belli, Corbetta and General Electric.

As Against Belli

The Hospital under the above authorities, has no claim for attorneys’ fees and expenses against Belli because no contract between them even hinted at such an undertaking. No such fees or expenses were sought or allowed below or are sought here.

As Against Corbetta

The Hospital’s claim that Corbetta must reimburse it for its attorneys’ fees and expenses is predicated upon Article 4 of Corbetta’s contract (St. Joseph Ex. 2, liability trial), which provided as follows:

“Article 4. Contractor further agrees to save and hold harmless Owner and Architect of, from and against any and all losses, damages, costs and expenses, including court costs and attorney fees, incurred and paid by Owner and Architect or either of them, arising out of or in connection with any and all acts or omissions of Contractor, any subcontractors of Contractor * *

And upon paragraph 17e of the General Conditions page A-7, which, in pertinent part, provided as follows:

“In the event that litigation shall ensue as a result of a decision made by Architect hereunder, the costs and expenses of such litigation * * * shall be paid by the party whose position is not upheld.”

The second provision (17e) above quoted obviously has nothing to do with the factual situation here involved.

In view of the fact that we have already held that Corbetta, in furnishing and installing in the Hospital precisely what Belli and the Hospital through its Sister Vincent had expressly ordered Corbetta to furnish and install, did not breach any contract and was not guilty of any “omission,” these contractual provisions do not require Corbetta to reimburse the Hospital for its attorneys’ fees and expenses. We therefore set aside the jury’s verdict in this regard and reverse so much of the judgment as holds Corbetta liable to the Hospital for its attorneys’ fees and expenses.

As Against General Electric

The Hospital’s claim that General Electric must reimburse for its attorneys’ fees and expenses is predicated upon Article 12(b) of the General Conditions (Hosp. Ex. 5), as incorporated by reference into the subcontract between Corbetta and General Electric. The said subcontract, in pertinent parts, provides as follows:

“You have read and are familiar with the principal contract, which is expressly made a part hereof, and the performance of this subcontract shaH be subject to and in accordance therewith. A copy of the principal contract shall be kept at our office for reference.

ft ft *

(e) You shall assume all such obhgations towards us as we assume towards the owner under the principal contract relating to your work.

(f) You assume and shall hold the owner and us harmless from any liabüity, loss or expense, incurred because of your failure to follow and carry out this subcontract or the provisions of the principal contract applicable to your work, or because of your operations hereunder, or any act or omission by you, your employees, agents or subcontractors, in connection with or during such operations, #

Article 12(b) of the General Conditions, so incorporated, provides as follows:

“Each contractor shall give all notices and comply with aU laws, ordinances, rules and regulations bearing on the conduct of his work. If the contractor observes that the drawings and specifications are in variance therewith, he shall promptly notify architect in writing and any necessary changes shall be adjusted as provided in the contract for changes in the work. If any contractor performs any work contrary to such laws, ordinances, rules and regulations, and without such notice to the architect, he shall bear all costs, expenses, fines, penalties, including court costs and attorneys’ fees arising therefrom.” (Emphasis supplied.)

It should be noted that said article not only requires each contractor to comply with all ordinances (which would certainly include the Chicago Building Code), but also provides that “if the contractor observes that the * * * specifications are in variance therewith, he shaH promptly notify architect in writing * * *” and that “if any contractor performs any work contrary to such * * * ordinances * * # and without such notice to the architect, he shall bear all costs, expenses, * * * including court costs and attorneys’ fees arising therefrom.”

On the record in this case, it is clear that General Electric not only furnished and installed paneling having a flame spread some 17 times the maximum permitted under the Code, but that, after an actual tunnel test by the Underwriters Laboratory had affirmatively disclosed to it that violation, it concealed that critical fact not only from the architect but from everyone else (see our comments and conclusions under the fourth issue (fraud and deceit by General Electric) of this opinion, supra).

It therefore seems fitting and proper that General Electric should be required to reimburse the Hospital for its attorneys’ fees and expenses in this case.

General Electric, however, contends, inter alia, that this does not follow here because paragraph (f) of the subcontract between Corbetta and General Electric fails itself to repeat the language of Article 12(b) relating to attorneys’ fees and expenses, citing Reed v. Long (6th Cir. 1964), 327 F.2d 611. That case, which involved a contractor’s claim for indemnity against his subcontractor for personal injuries suffered by an employee of the latter, is distinguished from the situation here before us and we are not convinced by it or by General Electric’s argument that it is not bound by Article 12(b) of the General Conditions which plainly includes attorneys’ fees.

Nor are we impressed by General Electric’s contention that the fees and expenses determined by the jury are excessive. We have reviewed the evidence and conclude that it sustains the jury’s determination.

We therefore approve the jury’s finding and affirm the judgment insofar as it requires General Electric to reimburse the Hospital for its attorneys’ fees and expenses in the sum of $112,251.12.

VII.

This brings us to what we perceive to be the seventh main problem— Is Corbetta now entitled to recover from the Hospital the funds withheld by it and, if so, must the Hospital also pay interest thereon?

In October of 1964, Corbetta applied for final payment under its contracts ($454,172.25, consisting of $322,402.05 on general construction and $121,770.20 for lathing and plastering), but the supervising architect (Anthony Belli) notified the Hospital that Corbetta should not be paid because it had not completed its work and that an architect’s certificate could not be released.

From here on the hassle over who was responsible for the selection and installation of the Textolite wall paneling and who was to certify (falsely) that it met the Code provisions, continued to build up until the Hospital, faced with a threat by the city to shut down its operation and with a threat by Corbetta of a suit for the funds so held back, was forced to file the instant suit for declaratory judgment.

Corbetta’s counterclaim for the funds so withheld ($454,172.25) was met by an answer by the Hospital which (par. 6) admitted that it had “refused to pay the balance due under the general construction contract in the amount of $332,402.05” and that “it has withheld under the plastering and lathing contract the sum of $121,770.20” but went on to say that:

“It has withheld these sums because of the failure of CORBETTA CONSTRUCTION CO., INC., BELLI & BELLI OF MISSOURI, INC., and GENERAL ELECTRIC COMPANY to fulfill the terms and conditions of their respective contracts, and because of the fact that the City of Chicago has refused to issue a license to ST. JOSEPH HOSPITAL to operate as a hospital in Chicago, Illinois, unless and until the defective wallboard is removed from the corridors and rooms of the hospital; * *

Inasmuch as the Textofite wall paneling referred to above has long since been removed and replaced with Micarta wall paneling which does comply with the Chicago Building Code and the Hospital has long since been licensed by the city to operate as a hospital and is doing so very successfully, and since we have already held (IV (b)) that Corbetta is, as a matter of law, not liable for such damages as here flowed from its having installed on the walls of the hospital the precise paneling specified in change order G-33 signed by Belli, the Hospital’s architect and by Sister Vincent, its administrator, we conclude and hold that the Hospital must now pay such withheld sums over to Corbetta, with one possible exception.

As the trial court held, and as we subsequently hold in affirming the trial court in this regard, General Electric cannot recover from Corbetta the price (some $58,000) of the Textolite wall paneling later removed and replaced with Micarta paneling. If, as we suspect, the $332,402.05 which Corbetta says (and the Hospital admits) was sought by Corbetta and withheld by the Hospital includes the said $58,000, said sum should be deducted from the payment now due from the Hospital to Corbetta, since Corbetta has not and need not pay such sum to General Electric. Corbetta’s counterclaim does not give enough details to enable us to determine this matter but it can, on remand, be quickly determined by the trial court, on motion for summary judgment on affidavits and (hopefully) without another jury trial.

This leaves the problem of whether the Hospital must also pay interest on the sums so withheld.

Corbetta opens its argument by quoting as follows from Keeler v. Herr (1895), 157 Ill. 57, 61, 41 N.E. 750, 751:

“<*##!£ they were entitled to that price under the contract, the statute gave them the right to interest from the time the money became due, by the terms of the written agreement. * # *”

While Keeler did involve a building contract, that contract did not include (as does the one in the case at bar) any requirement that an architect’s certificate be furnished before the money became due and payable. For other Illinois cases in which no requirement of a certificate was involved and the court likewise innocuously held that interest accrued from the time when the money became due by the terms of the contract, see Heiman v. Schroeder (1874), 74 Ill. 158, 160; Dobbins v. Higgins (1875), 78 Ill. 440, 442; Bauer v. Jerolman (1906), 124 Ill.App. 151, 156-157; Sanford Coal Co. v. Wisconsin Bridge & Iron Co. (7th Cir. 1923), 293 F. 735, 737; Smith v. Gray (1925), 316 Ill. 488, 499, 147 N.E. 459. Cases also exist and are here cited where the contract did require an architect’s certificate but such certificate either had been furnished or was waived by the owner’s action, whereupon interest of course began to accrue at that time. See Downey v. O’Donnell (1879), 92 Ill. 559, 562-563; McDonald v. Patterson & Co. (1900), 186 Ill. 381, 386, 57 N.E. 1027; Concord Apartment House Co. v. O’Brien (1907), 228 Ill. 360, 373, 81 N.E. 1038; Hood v. Community High School District No. 304 (1921), 223 Ill.App. 451, 454-455.

In the case at bar however, the contract, in pertinent parts, provided, in Articles 36, 37 and 38, as follows:

“ARTICLE 36. APPLICATIONS FOR PAYMENTS

A. Each Contractor must submit application for payment in triplicate on forms supplied by Architect. All blanks must be completed.

e # #

ARTICLE 37. CERTIFICATES OF PAYMENT

A. If the Contractor has made application for payment as above described, the Architect shall, not later than the date when each payment falls due, issue to the Contractor a certificate for such amount as he decides to be properly due, or state in writing his reasons for withholding a certificate. Architect’s certificates will be issued between the 5th and 10th day of each month.

# # *

ARTICLE 38. PAYMENT WITHHELD

The Architect may withhold, or on account of subsequently discovered evidence, nullify the whole or a part of any certificate to such extent as may be necessary to protect the Owner from loss on account of:

A. Defective work not remedied.

R. Claims filed or reasonable evidence indicating probable filing of claims.

C. Failure of the Contractor to make payments properly to subcontractors or for material or labor.

D. A reasonable doubt that the contract can be completed for the balance then unpaid.

When the above grounds are removed, payment shall be made for amounts withheld because of them.

ARTICLE 53. CORRECTION OF WORK BEFORE FINAL PAYMENT

A. Each Contractor shall promptly remove from the premises all work condemned by the Architect as failing to conform to the contract, whether incorporated or not, and said Contractor shall promptly replace and reexecute his own work in accordance with the contract and without expense to the Owner and shall bear the expense of making good all work of other Contractors destroyed or damaged by such removal or replacement.”

As we view these provisions, moneys are not “due and payable” under the written contract until an architect’s certificate has been obtained (or a judgment is entered by a court).

In the case at bar, the supervising architect had refused to issue his final certificate, a condition precedent to the payment of the remaining balance of the sums claimed by Corbetta under the contract for general construction and the contract for lathing and plastering. As of that date, the Hospital’s walls were still covered with Textolite wall paneling (which had a flame spread rating some 17 times that permitted under the Chicago Building Code), the city was refusing to issue an occupancy permit and was threatening to shut down the Hospital’s operation, etc., and the refusal to issue the certificate was neither arbitrary nor collusive. Nor was unreasonable delay involved.

A relatively recent Illinois decision on this point is Watson Lumber Co. v. Guennewig (1967), 79 Ill.App.2d 377, 226 N.E.2d 270, where, in reversing a judgment awarding interest under a written building contract and remanding the case for a new trial in which (p. 400) “Interest should not be found on what is found to be due,” the Appellate Court for the Fifth District, at page 398, said:

“The interest awarded as part of the judgment which the trial judge describes as 5% interest on the contract balance for 2 years, that being the period since the last payment, seems to us to be without foundation in our interest statute, and the cases construing it. C 74, Ill Rev Stats 1965, § 2. This statute, by its terms, limits the award of interest on contracts for money that is due. Booher v. Williams, supra. Interest is not awarded on money that may be found due, if the person withholding payment has done so in good faith, because of a genuine and reasonable dispute. In other words, interest would be a proper element of recovery only if it could be said relationship of debtor and creditor existed between the parties. Mariner v. Gilchrist, 280 Ill 544, 117 NE 695.

Interest can be awarded on money payable under building contracts, even when the amount payable may be uncertain until legally resolved; In re Morrison, 261 F 355, Downey v. O’Donnell, 92 Ill 559, but it has been held error to allow interest on an amount due when, as here, that amount depends largely upon the construction placed on the terms of a contract, and upon questions of fact about which there is room for a difference of opinion. O’Heron v. American Bridge Co. of New York, 177 Ill.App. 405. The dispute here was genuine, substantial, and we believe in good faith on the part of both parties; there was nothing unreasonable or vexatious about the defendant’s delay in paying. * * *”

We therefore conclude and hold that interest should not begin to run on the sums so withheld until the trial court, on remand, has fixed the amount improperly withheld and has entered judgment therefore in favor of Corbetta and against the Hospital.

Inasmuch as the trial court directed a verdict for the Hospital and against Corbetta on the latter’s counterclaim for the sums so withheld and entered judgment thereon, we reverse so much of the judgment as did so and remand the case for such further proceedings as are above indicated.

VIII.

This brings us to what we perceive to be the eighth problem— Whether, in No. 56761, the trial court erred in dismissing General Electric’s separate suit (here consolidated) against Corbetta for the price of the Textolite originally installed and later removed and replaced with Micarta paneling which met the flame spread requirements of the Chicago Building Code?

Inasmuch as we have heretofore (supra, IV (c)) held that General Electric was guilty of fraud and deceit in not disclosing to tire other parties that its said paneling had actually been tested by Underwriters Laboratory and had been found to have a flame spread some 17 times the maximum under the Chicago Building Code, it is obvious that it cannot recover the price of its said Textolite paneling and that the trial court properly dismissed its said action.

IX.

We now pass briefly to what might be a ninth problem — The propriety of the instructions given the juries in the two trials relating to liability and damages.

We have considered the objections made but are of the considered opinion that, by affirming in part and reversing in part and remanding the case to the trial court for considerably limited further proceedings (hopefully not requiring another jury), all of such objections are now moot and we do not further consider them.

X.

Recapitulation (Or Putting It All Together)

During the oral arguments in this case it was pointed out that the situation here involved occurred some 7 years ago, that this case was tried before an able and experienced trial judge and two juries for a total of 6Vz weeks by five firms of able and experienced (and expensive) counsel, that hundreds of documentary exhibits are involved and a transcript of over 5000 pages; and the hope was expressed that this court on this appeal could somehow dispose of the matter without another full-scale jury trial, with further attorneys’ fees and expenses, transcripts, etc. We have not been unmindful of these considerations.

Putting together all of the conclusions above set forth at considerable length, we take the following actions.

In No. 56761, we affirm the judgment dismissing General Electric’s separate action against Corbetta for the price of the Textolite wall paneling originally installed on the walls of the hospital and later removed and replaced with Micarta wall paneling complying with the Building Code.

In No. 56452, we affirm the judgment of some $17,178.31 in favor of the Hospital against Belli for the expenses of the restoration of “pipe spaces,” etc., under Count II of the complaint. We also affirm the dismissal of all counterclaims seeking indemnity as between the defendants and approve the trial court’s actions in permitting the instant suit to proceed as one for declaratory judgment and in separating the issues of liabilities and damages, with a separate jury for each.

We reverse the trial court’s dismissal of Corbetta’s counterclaim against the Hospital for the sums withheld by it under the general construction and plastering and lathing contracts and remand the case for the entry of a judgment in favor of Corbetta and against the Hospital, without interest, for $453,361.55, unless it shall appear that said holdback includes the price of the Textolite wall paneling originally installed and later removed, which, we have held, need not be paid by Corbetta to General Electric. If it does, this sum should be deducted from the $453,361.55.

We also reverse the judgments below insofar as the Hospital recovered attorneys’ fees and expenses from Corbetta and insofar as Corbetta recovered from Belli and General Electric (so as to divide the damages, roughly one-third to each). We also set aside the jury’s verdict that Corbetta is liable to the Hospital, reduce the damages fixed by the jury from $319,519.34 to $203,035.34 and remand the case for the entry of a judgment in favor of the Hospital against Belli and General Electric in that reduced sum; and another judgment in favor of the Hospital against General Electric for attorneys’ fees and expenses in the sum of $112,-251.21.

No party to recover costs on this appeal.

No. 56452. Affirmed in part, reversed in part and remanded with directions.

No. 56761. Affirmed.

BURKE and GOLDBERG, JJ., concur.

Chief Justice BENDER

delivered the Opinion of the Court.

I. Introduction

In this appeal we review the court of appeals’ decision that plaintiffs Jack and Dan-ette Steele stated a claim for negligent misrepresentation against an attorney with whom they did not have an attorney-client relationship. Steele v. Allen, 226 P.3d 1120, 1124 (Colo.App.2009). The Steeles allege that attorney Katherine Allen provided them incorrect information about a statute of limitations, which led to their missing the filing deadline in a negligence suit. The trial court dismissed both their claims of negligent misrepresentation and professional negligence, or what is commonly referred to as legal malpractice. The Steeles appealed only the dismissal of their negligent misrepresentation claim.

The court of appeals held that the Steeles stated a claim of negligent misrepresentation for which relief can be granted. Id. The court reasoned that although Allen did not issue an opinion letter to the Steeles at the request of a client, the Steeles nonetheless pleaded sufficient facts to satisfy all the elements of negligent misrepresentation. Id. at 1123. The court of appeals also supported its holding by reference to section 15(l)(c) of the Restatement (Third) of The Law Governing Lawyers (2000), which requires attorneys to exercise reasonable care when providing legal services to prospective clients. Id.

We reverse. Negligent misrepresentation requires, in part, that the misrepresentation be “for the guidance of others in their business transactions.” We hold as a matter of law that an initial consultation to discuss a potential civil lawsuit is not sufficient to meet the element “guidance of others in their business transactions”; therefore, the Steeles did not plead sufficient facts to state a claim of negligent misrepresentation.

Next, we address the court of appeals’ reliance on section 15(l)(c) of the Third Restatement, which imposes liability for legal malpractice in the absence of an attorney-client relationship. We hold that a claim of negligent misrepresentation may not be founded upon the requirement in section 15(l)(c) of the Third Restatement that attorneys owe a duty of reasonable care to prospective clients.

Accordingly, we reverse the court of appeals’ decision that the Steeles stated a claim of negligent misrepresentation for which relief can be granted. We remand this case to the court of appeals so that it may be returned to the trial court for proceedings consistent with this opinion.

II. Facts and Proceedings Below

Jack Steele was injured in an automobile accident, and he and his wife purportedly met with attorney Katherine Allen to discuss filing a negligence suit against the other driver. The Steeles claim that Allen provided them with incorrect information regarding a statute of limitations, which caused them to miss a filing deadline. They sued Allen and her professional corporation, Katherine Allen, P.C., based upon two claims: (1) legal malpractice, and (2) negligent misrepresentation.

The Steeles’ complaint alleges that Allen told them that their negligence claims against the other driver were subject to a five-year statute of limitations and that they needed to settle any workers’ compensation claims prior to filing suit. Their complaint asserts that both statements were false and that a three-year statute of limitations ultimately time-barred their action against the other driver.

*480The complaint does not allege that the Steeles formed an attorney-client relationship with Allen. Likewise, the complaint does not set forth the circumstances in which the Steeles met with or discussed their case with Allen-except for the statement that Allen "gave such information to Plaintiffs in the course of Defendants' business, profession, and employment." The Steeles asked for damages "in the value of their claims against [the other driver] and any other person legally liable for damages arising from the ... motor vehicle collision."

Allen moved to dismiss the complaint under CRCP. 12(b)(5) for failure to state a claim upon which relief can be granted. The district court granted the motion and dismissed the complaint with prejudice. It dismissed the legal malpractice claim because the Steeles did not allege sufficient facts to support a finding either that Allen owed them a duty of care or that they had established an attorney-client relationship. It dismissed their negligent misrepresentation claim because the Steeles did not allege the "special cireumstances" that were present in Mehaffy, Rider, Windholz & Wilson v. Central Bank Denver, 892 P.2d 230 (Colo.1995), in which attorneys prepared opinion letters to induce a third party's participation in a business transaction, at the direction of and for the benefit of the attorneys' client.

The Steeles appealed only the dismissal of their negligent misrepresentation claim to the court of appeals. The court of appeals reversed. Steele, 226 P.3d at 1124. It stated that it could not conclude that the Steeles would be unable to prove any set of facts that would entitle them to relief under a negligent misrepresentation theory. Id.

The court of appeals cited Mehaffy for the proposition that attorneys may be liable to non-clients for negligent misrepresentation where they give false information to third parties in the context of a business transaction. Id. at 11283. The court of appeals reasoned that although Mehaffy involved the scenario in which attorneys issued opinion letters to a non-client at their client's request, the Mehaffy court "did not specifically limit the tort of negligent misrepresentation in the attorney-client context to that cireum-stance." Id.

The court of appeals relied upon, as persuasive authority, the Restatement (Third) of The Law Governing Lawyers, which directs lawyers to "use reasonable care to the extent the lawyer provides ... legal services" to a prospective client. Id. (quoting Restatement (Third) of The Law Governing Lawyers § 15(1)(c) (2000). The court of appeals noted that the Restatement is different from Rule 1.18 of the Colorado Rules of Professional Conduct, but reasoned that section 15(1)(c) is not "precluded by, or contrary to1 Mehaffy and may be applicable in this case. Id. at 1128-24.

The court of appeals held that to state a claim, the misrepresentation must be given in the context of a business transaction. Id. at 1124. It reasoned that this element might be satisfied if an attorney provides false information to a potential client during an initial consultation for legal representation, but most likely would not be satisfied if an attorney makes informal or casual statements in a social setting. Id. (citing Restatement (See-ond) of Torts § 552 emt. d (1977)). Therefore, although the Steeles did not allege in their complaint the specific cireumstances of their meeting with Allen, they might be able to prove such a set of facts which would entitle them to relief. Id.

We granted Allen's petition for certiorari to determine whether the court of appeals erred in holding that the Steeles stated a claim of negligent misrepresentation for which relief can be granted.2 We now reverse.

*481III. Standard of Review

A C.R.C.P. 12(b)(5) motion to dismiss for failure to state a claim upon which relief can be granted tests the formal sufficiency of a plaintiff's complaint. Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377, 385 (Colo.2001). C.R.C.P. 12(b)(5) motions to dismiss are looked upon with disfavor, and a complaint should not be dismissed unless it appears beyond a doubt that a plaintiff can prove "no set of facts in support of her claim which would entitle her to relief" Id. at 385-86. When reviewing a motion to dismiss under C.R.C.P. 12(b)(5), a court must accept all averments of material fact as true and view all allegations in the light most favorable to the plaintiff. Id. at 386. A court may not consider information outside the confines of the pleading. Id.

We review motions to dismiss de novo. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo.2004). What elements constitute a claim are questions of law that we review de novo. Matoush v. Lovingood, 177 P.3d 1262, 1269 (Colo.2008).

IV. Discussion

In this case, we decide the narrow issue of whether a non-client may state a claim of negligent misrepresentation against an attorney for providing allegedly incorrect information during a consultation about a potential civil lawsuit. We do not decide whether a non-client may state a claim of legal malpractice against an attorney because the Steeles did not appeal that issue and that issue was not before the court of appeals.

The Steeles argue that their complaint was sufficient to state a claim of negligent misrepresentation because a jury could reasonably conclude that Allen negligently gave false information to the Steeles for their benefit and Allen should have foreseen that the Steeles would reasonably rely on the information. Additionally, the Steeles and their amici argue that attorneys owe a duty to exercise reasonable care and to refrain from giving false information to prospective clients. As support for this duty of care to prospective clients, they cite to section 15(1)(c) of the Restatement (Third) of The Law Governing Lawyers and a number of cases from other states that have adopted a balancing test to determine whether an attorney may be liable to non-clients for legal malpractice.3 Neither the Steeles nor their amici cite to any jurisdiction that has adopted section 15(1)(c) of the Third Restatement.

Allen makes two main arguments. First, Allen asserts that the court of appeals erred by expanding the tort of negligent misrepresentation beyond the limited facts that were present in Mehoffy. Alien maintains that a claim of negligent misrepresentation is proper only where an attorney issues an opinion letter to induce a third party's participation in a business transaction at the direction, and for the benefit, of the attorney's client. See-ond, Allen asserts that the court of appeals erred by adopting section 15(1)(c) of the Restatement (Third) of The Law Governing Lawyers, which is a legal malpractice standard of care, because the Steeles did not appeal the trial court's dismissal of their legal malpractice claim.

Initially, we discuss the elements of negligent misrepresentation and our cases construing this tort. Then, we review the specific element of "guidance of others in their business transactions" to determine whether an initial consultation about a potential lawsuit can satisfy that element. Finally, we address section 15(1)(c) of the Third Restatement of The Law Governing Lawyers because the court of appeals supported its hold*482ing with reference to this section, and we consider whether it can form the basis of a claim of negligent misrepresentation.

A. Negligent Misrepresentation

In Colorado, attorneys "do not owe a duty of reasonable care to non-clients,4 including prospective clients Mehaffy, 892 P.2d at 240. An attorney may be liable for legal malpractice only if the plaintiff has proven the existence of an attorney-client relationship. Id. at 239. Consistent with this principle are the Colorado Rules of Professional Conduct, which state that the only ethical duties attorneys owe to prospective clients are to keep their information confidential and to avoid conflicts of interest.5 Colo. RPC 1.18.

Where non-clients are concerned, an attorney's liability is generally limited to a narrow set of cireumstances in which the attorney has committed fraud or a malicious or tortious act, including negligent misrepresentation. Mehaffy, 892 P.2d at 235; 1 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 6:1 at 552 (2011). Absent this limitation, lawyers would be potentially liable to an "unforeseeable and unlimited number of third parties." Mehaffy, 892 P.2d at 235. Attorneys' liability to non-clients is also limited due to the adversarial nature of litigation, in which "injury to a third person often is the direct, intended objective of the attorney's representation." - Ronald & Mallen, Legal Malpractice § T:1 at 768; accord Mehoffy, 892 P.2d at 235; Turman v. Castle Law Firm, LLC, 129 P.8d 1103, 1105 (Colo.App.2006).

An attorney may be liable to a non-client for negligent misrepresentation, which is defined according to section 552 of the Restatement (Second) of Torts (1977).6 Mehaffy, 892 P.2d at 236-39. The elements of a claim of negligent misrepresentation are: (1) one in the course of his or her business, profession or employment; (2) makes a misrepresentation of a material fact, without reasonable care; (8) for the guidance of others in their business transactions; (4) with knowledge that his or her representations will be relied upon by the injured party; and (5) the injured party justifiably relied on the misrepresentation to his or her detriment. Id. at 286-88.

Section 552 of the Restatement does not require that the defendant attorney make the misrepresentation by issuing an opinion letter to a non-client on behalf of an existing client; however, the attorney's duty to the non-client often flows from her duty to an existing client. Ronald & Mallen, Legal Malpractice § T:14 at 863 ("The noneclient's entitlement ... often arises from a duty owed the client."). Case law from across jurisdictions indicates that the most common form of negligent misrepresentation against an attorney arises when an attorney provides a written opinion to a third party at the request of the attorney's client, in order to close a "variety of commercial transactions." Id. at 864.

These cireumstances were present in Me-haffy, where we held that a non-client stated a claim against a law firm and a number of attorneys for negligent misrepresentation. 892 P.2d at 233. There, the defendant attor*483neys prepared a series of opinion letters stating that a pending lawsuit had no merit on behalf of their client to induce a bank to buy the client's municipal notes and bonds. Id. at 288-34. The bank purchased the notes and bonds, after which the pending lawsuit was successful and the bonds went into default. Id. at 284. We held that the bank stated a claim of negligent misrepresentation against the attorneys. Id. at 288. We reasoned that the attorneys prepared the opinion letters at the request of their client in order to induce the bank to enter into a mutually-beneficial - business - relationship. Id. at 288, 287. The letters were addressed to and for the benefit of the bank. Id. at 287. They were not issued in the context of an adversarial relationship. Id. Finally, the bank could have reasonably relied upon them. Id. at 289. See also Zimmerman v. Dan Komphausen Co., 971 P.2d 286 (Colo.App.1998) (holding that plaintiff stated a claim against an attorney for negligent misrepresentation where the attorney issued an opinion letter making assurances about its client in a real estate transaction).

It appears that a non-client plaintiff is most likely to state a claim of negligent misrepresentation against an attorney if it is based on facts similar to those presented in Mehaffy. However, we did not explicitly limit the claim of negligent misrepresentation against an attorney to factual cireumstances where the attorney issues opinion letters to a third party at the request of her client. See Mehaffy, 892 P.2d at 235-37. Likewise, seetion 552 of the Restatement does not mandate that exact factual scenario to state a claim. As such, we do not hold that the facts present in Mehaffy must be met to satisfy the elements of negligent misrepresentation, as Allen argues. Moreover, we find it unnecessary to add additional elements to the claim of negligent misrepresentation because, in this case, the Steeles did not sufficiently plead all the elements mandated by the Restatement, as we now discuss.

B. Business Transaction

Next, we determine whether a misrepresentation made to a non-client about a potential civil lawsuit can satisfy the element "for the guidance of others in their business transactions." Regarding the meaning of a "business transaction," the Steeles argue that a "transfer of legal rights" is sufficient to meet the definition of a "business transaction." In other words, the Steeles argue that their negligence suit against the other driver is a business transaction and that Allen misinformed them while advising them in this matter. Alternatively, the Steeles assert that this court has never held that the plaintiff must use the false information in a business transaction. We review each argument in turn.

First, the requirement that the misrepresentation was made "for the guidance of others in their business transactions" is an essential element of the tort of negligent misrepresentation. This element is separate and in addition to the element that the defendant attorney made the misrepresentation "in the course of his business, profession or employment." The "guidance of others in their business transactions" element means that the defendant attorney provided information to guide others, meaning, to guide the recipient of the information, in his or her business transactions. The recipient of the information could fall into two classes of people. First, the recipient could be a third party, to whom the attorney provides guidance at the request of his or her client. Second, in a situation such as the case at hand, the recipient could be a non-client, to whom the attorney provides information directly.

Second, we determine whether a potential lawsuit against another party can satisfy the element of a "business transaction." We look to the comments to section 552 of the Restatement. The comments discuss liability in terms of "commercial transactions" and state that "(bly limiting the liability for negli-genee of a supplier of information to be used in commercial transactions ... the law promotes the important social policy of encouraging the flow of commercial information upon which the operation of the economy rests." Restatement (Second) of Torts $ 552 emt. a.

Common usage supports the Restatement's explanation that a business transac*484tion is a commercial transaction. Black's Law Dictionary defines "business" as a "commercial enterprise carried on for profit; a particular occupation or employment habitually engaged in for livelihood or gain." Black's Law Dictionary 226 (9th ed. 2009). A "business transaction" is defined as an "action that affects the actor's financial or economic interests, including the making of a contract." Id. at 227.

Next, Colorado cases demonstrate that the tort of negligent misrepresentation is intended to provide a remedy for, and is in fact limited to, "money losses due to misrepresentation in a business transaction." W. Cities Broad., Inc. v. Schueller, 849 P.2d 44, 49 (Colo.1993) (emphasis added). In many Colorado cases in which the plaintiff stated a claim of negligent misrepresentation, the aggrieved plaintiff entered into a business or commercial transaction, or was induced to enter into the transaction, based on the defendant's misrepresentations. See, e.g., Keller v. A.O. Smith Harvestore Prods., Inc., 819 P.2d 69 (Colo.1991) (silo manufacturer made misrepresentations to prospective buyers); Platt v. Aspenwood Condo. Ass'n Inc., 214 P.3d 1060 (Colo.App.2009) (condominium association made misrepresentations to purchasers about its authorization to sell unit); Wolther v. Schaarschmidt, 738 P.2d 25 (Colo.App.1986) (engineer supplied false information to a prospective home buyer); First Nat'l Bank in Lamar v. Collins, 44 Colo. App. 228, 616 P.2d 154 (1980) (auto company made misrepresentations when assisting plaintiff in the purchase of an associate store).

Other states that define negligent misrepresentation according to section 552 have limited the cause of action strictly to cases involving business transactions, which they define synonymously with "commercial transactions." See, e.g., G.A.W. III v. D.M.W, 596 N.W.2d 284, 290 (Minn.Ct.App. 1999) (stating that negligent misrepresentation has been "recognized [only] in the context of a business or commercial transaction" and did not apply to husband's suit alleging former wife misrepresented paternity); Robinson v. Omer, 952 S.W.2d 423, 427-28 (Tenn.1997) (holding that negligent misrepresentation did not apply where attorney gave advice for personal, not business, matters). Contra Sain v. Cedar Rapids Cmty. Sch. Dist., 626 N.W.2d 115, 126 (Iowa 2001) (holding that negligent misrepresentation is not restricted to business matters, but "situations where the information supplied harmed the plaintiff in its relations with third parties").

Analyzing the meaning of a "business transaction" in a different context, the Colorado Rules of Professional Conduct prevent an attorney from entering "into a business transaction with a client." Colo. RPC 1.8(a) (emphasis added). The comments state that there is a "possibility of overreaching when the lawyer participates in a business, property or financial transaction with a client." Id. emt. 1 (emphasis added). This rule is not intended to prevent an attorney from assisting a client with a potential lawsuit. If a "business transaction" was viewed so broadly as to encompass a lawsuit against another party, then attorneys could not assist their clients in lawsuits. This would render meaningless the prohibition in Colo. RPC 1.8 against attorneys entering into business transactions with their clients.

Therefore, a "business transaction" in the context of negligent misrepresentation means exactly what common understanding of the term implies: to state a claim of negligent misrepresentation, the misrepresentation must be given for the plaintiff's business or commercial purposes. Although a negligence lawsuit against another party has the potential to affect indirectly a non-client's financial or economic interests, a civil lawsuit does not involve a business or commercial relationship or transaction.

Hence, we hold as a matter of law that an initial consultation to discuss a potential civil lawsuit is not sufficient to meet the element "guidance of others in their business transactions."

C. Restatement Third

We next address whether section 15(1)(c) of the Restatement (Third) of The Law Governing Lawyers, which only addresses the basis of liability for legal mal*485practice, may also provide the basis of liability for negligent misrepresentation. We do so because the court of appeals relied on it to find an attorney's duty of care to prospective clients, where no attorney-client relationship exists. Section 15(1)(c) imposes liability for malpractice in the absence of an attorney-client relationship, which contravenes Colorado law. Hence, we hold that it may not be used to support a claim of negligent misrepresentation.

Section 15 of the Restatement (Third) of The Law Governing Lawyers requires attorneys to use reasonable care when they provide legal services to prospective clients. Section 15 states in relevant part:

(1) When a person discusses with a lawyer the possibility of their forming a client-lawyer relationship for a matter and no such relationship ensues, the lawyer must

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(c) use reasonable care to the extent the lawyer provides the person legal services.

Section 15(1)(c) creates a standard of care in which attorneys may face civil liability for legal malpractice if they negligently provide legal services to prospective clients. Id. § 48 (Professional Negligence); § 51(1) (Duty of Care to Certain Noneclients). Negligent misrepresentation is addressed in a separate section of the Third Restatement. Id. § 51(2). Therefore, section 15(1)(c) is not a negligent misrepresentation standard of care. Rather, it addresses legal malpractice, which, as we have pointed out, is not at issue in this appeal.

In addition to the fact that seetion 15(1)(c) does not address negligent misrepresentation, it blurs the distinction between a prospective client and a client because it subjects attorneys to the same civil liability and ethical responsibilities, irrespective of whether a person is a client or a prospective client. The distinction between a client and a prospective client is fundamental to Colorado law. In Colorado, attorneys do not owe a duty of reasonable care to non-clients-either for legal malpractice or under the ethical rules. Mehaffy, 892 P.2d at 240; Colo. RPC 1.18. A plaintiff must establish the existence of an attorney-client relationship to state a claim of legal malpractice.7 Mehaffy, 892 P.2d at 239. Attorneys owe a host of ethical obligations to clients which they do not owe to prospective clients. Seq, eg., Colo. RPC 1.1 (competence); 1.3 (diligence); 1.4 (communication). Section 15(1)(c) of the Restatement blurs the lines which are distinct in our jurisprudence to impose liability for legal malpractice broader than our precedent allows. Hence, it is inappropriate to rely on this subsection of the Restatement to define the tort of negligent misrepresentation.

If we were to hold that the tort of negligent misrepresentation may be based on an attorney's duty of reasonable care to prospective clients, then this would diminish the requirement that a plaintiff must establish an attorney-client relationship in order to state a claim of malpractice. In other words, prospective clients could make legal-malpractice-like claims under the guise of negligent misrepresentation, to cireumvent the requirement to prove an attorney-client relationship, a necessary element of the tort of legal malpractice. Hence, we hold that a claim of negligent misrepresentation may not be founded upon the requirement in section 15(1)(c) of the Third Restatement that attorneys owe a duty of reasonable care to prospective clients.

V. Application

Applying the principles we have discussed to this case, we hold that the Steeles did not allege sufficient facts in their complaint to state a claim of negligent misrepresentation. If we assume, as did the court of appeals, that the Steeles met with Allen in her office to discuss retaining her in their civil suit, then this is insufficient as a matter of law to *486prove that she made the misrepresentation for their guidance in a business or commercial transaction. While this fact might be sufficient to satisfy the element that Allen gave the advice in the course of her "business, profession or employment," this alleged fact does not suffice to satisfy the distinct element that Allen gave the advice "for the guidance of others in their business transactions." - Because the Steeles did not sufficiently plead the "business transactions" element as a matter of law, we do not address whether their complaint satisfied the other elements of negligent misrepresentation.

If the Steeles had an attorney-client relationship with Allen, then their allegation that she provided incorrect information about a statute of limitations would constitute a typical claim of malpractice. We are unwilling to expand the claim of negligent misrepresentation in this case in order to circumvent the element of the tort of legal malpractice, which requires the formation of an attorney-client relationship. Hence, we hold that the court of appeals erred by relying upon seetion 15(1)(c), which defines a legal malpractice standard, to form the basis of a negligent misrepresentation claim under cireumstances where negligent misrepresentation was insufficiently pleaded.

VI. Conclusion

For the reasons stated above, we reverse the court of appeals' decision. We remand this case to the court of appeals to be returned to the trial court for proceedings consistent with this opinion.

Justice EID,

concurring.

I agree with the majority that the Steeles failed to state a claim for negligent misrepresentation. Maj. op. at 484. I also agree with the majority that section 15(1)(c) of the Third Restatement of The Law Governing Lawyers addresses the scope of a claim for legal malpractice, and therefore cannot be used to expand the tort of negligent misrepresentation as it has been recognized in Colorado. Id. at 485. Significantly, because the Steeles did not raise on appeal the issue of whether they could state a legal malpractice claim, the issue is not now before us. Id. at 481. I therefore understand the majority's opinion as taking no position on the seope of section 15(1)(c) and its application to legal malpractice actions in Colorado. Accordingly, I join the opinion of the majority.

ELMORE, Judge.

*155 Wilton Gene Rountree (plaintiff), a former tax administrator, retired from his employment with Nash County before accepting a new position with Chowan County (defendant) on a limited basis. After working for nearly two years, plaintiff learned that the terms of his employment with defendant had rendered him ineligible to receive retirement benefits. He resigned and sued defendant for breach of contract and negligent misrepresentation. The trial court granted summary judgment for defendant on both claims.

Plaintiff appeals, arguing that the trial court erred in granting summary judgment on his negligent misrepresentation claim. Upon review, we hold that summary judgment for defendant was proper because (1) plaintiff failed to forecast evidence which, taken as true, would establish *156 that defendant owed plaintiff a duty of care apart from defendant's purported contractual obligation; and (2) assuming the existence of a separate legal duty, plaintiff failed to produce evidence tending to show that his reliance was justifiable. Affirmed.

I. Background

In 2009, defendant was experiencing financial difficulties. It had been forced to increase taxes twice in the preceding year to fund its operations and, to make matters worse, its *829 longtime tax administrator resigned unexpectedly. Plaintiff was referred to Peter Rascoe, the Chowan County manager, as a potential replacement. Plaintiff had served as a tax administrator, first in Edgecombe County and then Nash County, before his retirement in February 2009. Impressed with plaintiff's experience and reputation, Rascoe contacted plaintiff to discuss the position.

As a retiree, plaintiff was receiving benefits through the Local Government Employees' Retirement System (LGERS). During his initial meeting with Rascoe, plaintiff expressed interest in the tax administrator position but made clear that he wanted to protect his retirement benefits. After their meeting, Rascoe sent plaintiff an offer letter describing the terms of the proposed employment agreement. The letter provided in part:

As a retiree realizing benefits from the local government retirement system and health insurance benefits from your former employer, you have expressed interest in the position on a contract basis. I am prepared to offer you such an arrangement along the parameters we discussed. As such, the position if accepted by you, would be an "at will" contract relationship. I am prepared to offer such an arrangement to you for at least a term of twenty-four months with the hope that it may continue for a longer period if both parties are in agreement.

On the more specific conditions, the letter stipulated that plaintiff would receive an annual salary of $46,800.00, or $30.00 per hour based on the number of actual hours worked per week, with a target of a thirty-hour work week. Defendant would not withhold retirement contributions, as plaintiff was already receiving those benefits.

Rascoe, an attorney, knew the state had employment restrictions in place for its retirees which, if not observed, could disqualify them from their retirement benefits. During his deposition, Rascoe explained that he *157 was acting in defendant's interest when he drafted the letter although he tried to address plaintiff's concerns. He did not represent or guarantee that plaintiff's benefits would be safe under the proposed terms of employment but he did believe that plaintiff would find them suitable. Rascoe testified: "It was my understanding that we had presented him ... with an arrangement that he could agree to that he would have-he could make the determination whether or not it affected his retirement ..., but it was our understanding ... of the system that this did that. We thought."

Plaintiff himself was also familiar with LGERS. When he prepared to retire from his position in Nash County, he had consulted the State Employee Retirement Handbook, which contained the benefits eligibility requirements, to determine the amount of money he could expect to receive in retirement. He acknowledged during his deposition that he would have been responsible for maintaining his own benefits eligibility. According to plaintiff's testimony and affidavit, however, Rascoe "assured" him that the employment contract would protect his benefits. Beyond his conversations with Rascoe, plaintiff performed no due diligence to confirm whether defendant's proposed terms of employment would affect his benefits.

Plaintiff eventually accepted the position under the terms set forth in the offer letter. He worked as the tax administrator without incident for nearly two years until 1 August 2011, when he received a written notice from the North Carolina Retirement Systems Division. The notice informed plaintiff that, based on his employment agreement, he had returned to "regular employment" on 1 August 2009 and his compensation since then was subject to retirement contributions, which had not been made. In addition, because the Division had not been informed of plaintiff's "return to service," he had received $114,448.32 in monthly retirement benefits to which he was not entitled as an "employee" under LGERS. Plaintiff resigned the following day.

Beginning in September 2011, the Division began deducting $1,000.00 each month from plaintiff's retirement benefits to repay the $114,448.32 which he had received over the past two years. Defendant later provided counsel to plaintiff, and plaintiff entered into a settlement agreement with the Division to repay $30,000.00 of the $114.448.32 in wrongful distributions. Of the $30,000.00 which *830 plaintiff agreed to repay, $11,000.00 had already been satisfied through monthly deductions, leaving $19,000.00 to be paid in the same manner.

On 29 April 2013, plaintiff filed a complaint against defendant alleging breach of contract and negligent misrepresentation. Defendant *158 answered and moved for summary judgment on each of plaintiff's claims, which the trial court granted. Plaintiff timely appeals.

II. Discussion

On appeal, plaintiff does not challenge the trial court's ruling on his breach of contract claim. He argues instead that the court erred in granting summary judgment on his negligent misrepresentation claim because he demonstrated genuine issues of material fact for trial. Defendant maintains that the trial court's grant of summary judgment was proper for two reasons: first, plaintiff's claim for negligent misrepresentation is barred by the economic loss rule because it impermissibly arises out of the same alleged contractual duty as his original breach of contract claim; and second, plaintiff failed to establish the essential elements of negligent misrepresentation-specifically, a duty of care, justifiable reliance, and detrimental reliance.

"Our standard of review of an appeal from summary judgment is de novo." In re Will of Jones , 362 N.C. 569 , 573, 669 S.E.2d 572 , 576 (2008). Such judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c) (2015). The movant has "the burden of establishing the lack of any triable issue." Lord v. Beerman , 191 N.C.App. 290 , 293, 664 S.E.2d 331 , 334 (2008) (citing Roumillat v. Simplistic Enters., Inc. , 331 N.C. 57 , 62-63, 414 S.E.2d 339 , 341-42 (1992) ). The movant may satisfy its burden " 'by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim.' " Id. (quoting Collingwood v. G.E. Real Estate Equities, 324 N.C. 63 , 66, 376 S.E.2d 425 , 427 (1989) ); see also Ussery v. Branch Banking & Trust Co. , 368 N.C. 325 , 335, 777 S.E.2d 272 , 279 (2015) ("When the proof offered by either party establishes that no cause of action or defense exists, summary judgment may be granted." (citation omitted)). "When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party." Dalton v. Camp , 353 N.C. 647 , 651, 548 S.E.2d 704 , 707 (2001) (citation omitted).

"The tort of negligent misrepresentation occurs when a party justifiably relies to his detriment on information prepared without reasonable care by one who owed the relying party a duty of care."

*159 Raritan River Steel Co. v. Cherry, Bekaert & Holland , 322 N.C. 200 , 206, 367 S.E.2d 609 , 612 (1988) (citations omitted); see also id. at 203, 214, 367 S.E.2d at 611, 617 (adopting the approach to negligent misrepresentation set forth in Restatement (Second) of Torts § 552 (1977) ); Simms v. Prudential Life Ins. Co. of Am. , 140 N.C.App. 529 , 532, 537 S.E.2d 237 , 240 (2000) (articulating elements of negligent misrepresentation).

The parties first disagree as to whether the economic loss rule bars plaintiff's negligent misrepresentation claim. The economic loss rule, as it has developed in North Carolina, generally bars recovery in tort for damages arising out of a breach of contract:

A tort action does not lie against a party to a contract who simply fails to properly perform the terms of the contract, even if that failure to perform was due to the negligent or intentional conduct of that party, when the injury resulting from the breach is damage to the subject matter of the contract. It is the law of contract and not the law of negligence which defines the obligations and remedies of the parties in such a situation.

Lord v. Customized Consulting Specialty, Inc. , 182 N.C.App. 635 , 639, 643 S.E.2d 28 , 30-31 (2007) (alteration omitted) (citations omitted); see also N.C. State Ports Auth. v. Lloyd A. Fry Roofing Co. , 294 N.C. 73 , 81-82, 240 S.E.2d 345 , 350-51 (1978) (explaining that absent four enumerated exceptions, "a *831 breach of contract does not give rise to a tort action by the promisee against the promisor"), rejected in part on other grounds by Trs. of Rowan Technical Coll. v. J. Hyatt Hammond Assocs., Inc. , 313 N.C. 230 , 241-43, 328 S.E.2d 274 , 289-82 (1985).

Plaintiff alleged in his complaint that defendant breached the employment agreement which, according to plaintiff, "required Defendant to provide employment terms that would not limit, abridge, or diminish Plaintiff's right to receive Retirement Benefits from LGERS." If this condition was part of the agreement, as plaintiff initially pleaded, then his tort claim would fail as a matter of law because "a breach of contract does not give rise to a tort action." N.C. State Ports Auth. , 294 N.C. at 81 , 240 S.E.2d at 350 . In support of his tort claim, however, plaintiff pleaded in the alternative that a misrepresentation occurred prior to the execution of the agreement for the purpose of inducing plaintiff to enter into a contract: "Defendant ... represented to Plaintiff that it was offering employment terms that would not violate his eligibility for retirement benefits through LGERS," and "Defendant, hoping to induce Plaintiff into employment, intended for him to rely upon the aforesaid representation regarding continued eligibility for retirement benefits." Defendant *160 argues that plaintiff's tort claim is "merely a restatement of his failed contract claim disguised as a distinct cause of action." But if the evidence otherwise showed that defendant had no contractual obligation to protect plaintiff's retirement benefits, then plaintiff's tort claim, construed liberally, would not be barred by the economic loss rule.

Even so, a viable tort action "must be grounded on a violation of a duty imposed by operation of law, and the right invaded must be one that the law provides without regard to the contractual relationship of the parties." Asheville Contracting Co. v. City of Wilson , 62 N.C.App. 329 , 342, 303 S.E.2d 365 , 373 (1983) (emphasis added) (citation omitted). "When there is no dispute as to the facts or when only a single inference can be drawn from the evidence, the issue of whether a duty exists is a question of law for the court." Mozingo v. Pitt Cnty. Mem'l Hosp., Inc. , 101 N.C.App. 578 , 588, 400 S.E.2d 747 , 753 (1991) (citations omitted), aff'd , 331 N.C. 182 , 415 S.E.2d 341 (1992).

A breach of duty that gives rise to a claim of negligent misrepresentation has been defined as:

One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, [and thus] is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Simms , 140 N.C.App. at 534 , 537 S.E.2d at 241 (alteration in original) (emphasis omitted) (quoting Marcus Bros. Textiles, Inc. v. Price Waterhouse, LLP , 350 N.C. 214 , 218, 513 S.E.2d 320 , 323-24 (1999) ) (internal quotation marks omitted).

Such a duty commonly arises within professional relationships. See, e.g. , Ballance v. Rinehart , 105 N.C.App. 203 , 207-08, 412 S.E.2d 106 , 109 (1992) (real estate appraisers); Stanford v. Owens , 46 N.C.App. 388 , 400, 265 S.E.2d 617 , 625 (1980) (engineers); Shoffner Indus., Inc. v. W.B. Lloyd Constr. Co. , 42 N.C.App. 259 , 271-72, 257 S.E.2d 50 , 59 (1979) (architects). In Raritan River Steel , for example, two plaintiff-corporations claimed to have extended credit to Intercontinental Metals Corporation (IMC) based upon an audit report of IMC's financial status. 322 N.C. at 203 , 367 S.E.2d at 611 . IMC had retained a firm of certified public accountants to prepare the report. Id. When IMC defaulted, the plaintiffs sued the accounting firm for negligent misrepresentation, *161 alleging that plaintiffs "incurred damages when they extended credit to IMC in reliance on incorrect information contained in an audit report on IMC's financial status prepared for IMC by defendants." Id. As to whether the accounting firm owed a duty of care to the plaintiffs, the Supreme Court explained:

As we understand it, under the Restatement approach an accountant who audits or prepares financial information for a *832 client owes a duty of care not only to the client but to any other person, or one of a group of persons, whom the accountant or his client intends the information to benefit; and that person reasonably relies on the information in a transaction, or one substantially similar to it, that the accountant or his client intends the information to influence.

Id. at 210, 367 S.E.2d at 614 ; see also Restatement (Second) of Torts § 552 cmt. e (1977) ("When the information [supplied] concerns a fact not known to the recipient, he is entitled to expect that the supplier will exercise that care and competence in its ascertainment which the supplier's business or profession requires and which, therefore, the supplier professes to have by engaging in it.").

We have also recognized, albeit in a more limited context, that a separate duty of care may arise between adversaries in a commercial transaction. In Kindred of North Carolina, Inc. v. Bond , 160 N.C.App. 90 , 584 S.E.2d 846 (2003), the buyer sued the seller for negligent misrepresentation in connection with the purchase of a closely-held business. Id. at 92-95, 584 S.E.2d at 848-49 . After entering into a purchase agreement, the buyer discovered that the seller had provided inaccurate financial information about the company. Id. at 93-95, 584 S.E.2d at 848-49 . This Court held that the seller owed a duty to the buyer during the course of negotiations "to provide accurate, or at least negligence-free financial information" about the company because the seller " was the only party who had or controlled the information at issue " and the buyer " had no ability to perform any independent investigation ." Id. at 101, 584 S.E.2d at 853 (emphasis added) (citing Libby Hill Seafood Rests., Inc. v. Owens , 62 N.C.App. 695 , 698, 303 S.E.2d 565 , 568 (1983) ("[W]here material facts are available to the vendor alone, he or she must disclose them.")).

Unlike the buyer in Kindred , however, here plaintiff has failed to establish a viable tort action based on a violation of a duty of care. The dispute arose out of a potentially adversarial arm's-length negotiation *162 between an employer and prospective employee. Defendant did not have exclusive access or control over the benefits eligibility information, which was publicly available and readily accessible. In addition, plaintiff had an equal opportunity to perform his own investigation to determine whether the proposed terms of employment were suitable. In the course of their discussions, therefore, defendant had no legal duty to provide accurate information regarding plaintiff's continued benefits eligibility.

Even assuming that defendant owed to plaintiff a duty of care, plaintiff's negligent misrepresentation claim fails for another reason. Specifically, plaintiff failed to produce evidence tending to show that he made a reasonable inquiry into Rascoe's representations, that he was denied the opportunity to investigate, or that he could not have learned the true facts through reasonable diligence. While normally a question for the jury, the only conclusion that can be drawn from the evidence is that plaintiff's reliance was not justifiable. See Dallaire v. Bank of Am., N.A. , 367 N.C. 363 , 369, 760 S.E.2d 263 , 267 (2014) ("Whether a party's reliance is justified is generally a question for the jury, except in instances in which 'the facts are so clear as to permit only one conclusion.' " (quoting Marcus Bros. Textiles, Inc. , 350 N.C. at 225 , 513 S.E.2d at 327 )).

Plaintiff maintains that, according to Walker v. Town of Stoneville , 211 N.C.App. 24 , 712 S.E.2d 239 (2011), he was under no obligation to undertake his own investigation into the accuracy of defendant's representations. In that case, the defendant Town of Stoneville argued that Walker had a "duty to investigate" the Town's representations, and because Walker "failed to show he was denied the opportunity to investigate or that he could not have learned the true facts by exercise of reasonable diligence," the evidence was insufficient to establish reasonable reliance. Id. at 34, 712 S.E.2d at 246 . Rejecting the Town's contention, this Court first explained that " 'a man is not expected to deal with another as if he is a knave, and certainly not unless there is something to excite his suspicion.' " Id. (quoting White Sewing Mach. Co. v. Bullock , 161 N.C. 1 , 8, 76 S.E. 634 , 637 (1912) ). In addition, the *833 evidence showed that "[Walker] and the Town were not on equal footing," and there was nothing in the Town's representations "that would put a person of ordinary prudence upon inquiry." Id. at 34, 712 S.E.2d at 246-47 . Because "the evidence was sufficient to show that [Walker] could not have learned the true facts by exercise of reasonable diligence," the Court did not specifically address whether Walker "was required to show that he was denied the opportunity to investigate, or that he could not have learned the true facts by exercise of reasonable diligence." Id. at 35, 712 S.E.2d at 247 . *163 At least two Supreme Court cases decided since Walker support defendant's argument that plaintiff was required to show more to establish justifiable reliance. In Dallaire , the Court held that "a borrower cannot establish a claim for negligent misrepresentation based on a loan officer's statements about lien priority if the borrower fails to make reasonable inquiry into the validity of those statements." 367 N.C. at 364 , 760 S.E.2d at 264 . Because the borrowers offered no evidence that they inquired, or were prevented from inquiring, into the accuracy the loan officer's statements, the Court affirmed summary judgment for the lender on the borrower's negligent misrepresentation claim. Id. at 369-70 , 760 S.E.2d at 267-68 ; see also Pinney v. State Farm Mut. Ins. Co. , 146 N.C.App. 248 , 256, 552 S.E.2d 186 , 192 (2001) ("[W]hen a party relying on a 'misleading representation could have discovered the truth upon inquiry, the complaint must allege that he was denied the opportunity to investigate or that he could not have learned the true facts by exercise of reasonable diligence.' " (citation omitted)), disc. review denied , 356 N.C. 438 , 572 S.E.2d 788 (2002).

Similarly, in Arnesen v. Rivers Edge Golf Club & Plantation, Inc. , 368 N.C. 440 , 781 S.E.2d 1 (2015), the Court relied on Dallaire to affirm the dismissal of the plaintiffs' negligent misrepresentation claim pursuant to Rule 12(b)(6). Id. at 451-52, 781 S.E.2d at 9-10 . The Court explained: "Reliance is not reasonable if a plaintiff fails to make any independent investigation or fails to demonstrate he was prevented from doing so." Id. at 449, 781 S.E.2d at 8 (citations omitted) (internal quotation marks omitted). Rather, "to establish justifiable reliance a plaintiff must sufficiently allege that he made a reasonable inquiry into the misrepresentation and allege that he was denied the opportunity to investigate or that he could not have learned the true facts by exercise of reasonable diligence." Id. at 454, 781 S.E.2d at 11 (citations omitted) (internal quotation marks omitted). Because the plaintiffs did "not allege that they inquired, or were prevented from inquiring," into certain appraisal information, they failed to establish justifiable reliance. Id. at 451, 781 S.E.2d at 9 (citing Dallaire , 367 N.C. at 370 , 760 S.E.2d at 268 ); see also Fazzari v. Infinity Partners, LLC , 235 N.C.App. 233 , 241, 762 S.E.2d 237 , 242 (2014) (affirming summary judgment for the defendant-lender where the plaintiffs failed to forecast evidence that they conducted an independent inquiry into the value of lots in planned subdivision or were prevented from doing so).

In this case, plaintiff failed to produce any evidence-or allege in his complaint-that he made a reasonable inquiry into Rascoe's representations, that he was denied the opportunity to investigate, or that *164 he could not have learned the true facts through reasonable diligence. On the contrary, defendant directs our attention to plaintiff's deposition testimony in which plaintiff stated that he was familiar with LGERS and was aware that the rules governing his benefits were available in the State Employee Retirement Handbook. Plaintiff also confirmed that his understanding of his benefits eligibility was based purely on his review of the handbook, and that he even consulted the handbook for other benefits information as he prepared to retire from Nash County. And while he acknowledged his own responsibility for maintaining his personal retirement benefits, he did not consult with anyone else regarding his eligibility requirements before accepting the position with defendant. In the absence of any evidence tending to show justifiable reliance, the trial court properly granted summary judgment in favor of defendant.

III. Conclusion

Because defendant met its burden by proving the absence of a separate duty of care *834 and justifiable reliance, we affirm the trial court's order granting summary judgment for defendant on plaintiff's negligent misrepresentation claim.

AFFIRMED.

Judges HUNTER, JR. and DILLON concur.

*52 BOUDIN, Circuit Judge.

Paula O’Donnell, a former employee of the Boston Globe Employees Credit Union (“the Credit Union”), appeals from the dismissal on summary judgment of her Massachusetts state law claims alleging tortious interference with contractual relations by her supervisor and others. On this appeal, the central issue concerns preemption of state law claims under Supreme Court precedent designed to protect the collective bargaining process governed by federal labor law.

O’Donnell began working at the Credit Union as a teller in 1974. Her employment was governed by a collective bargaining agreement (“CBA”) between the Credit Union and the Office and Professional Employees International Union, Local 6, AFL-CIO (“Local 6”), of which she was a member. During the relevant period, defendant Marion Doucette was Manager/CEO of the Credit Union and was also a member of its board of directors (“the Board”) along with Donna Boggs, Brendan Hall, William Francis, and Mary Lou Meighan.

According to O’Donnell, in 1998 as head teller she reported fraud and embezzlement by Gene Farrell, then Manager/CEO of the Credit Union, which “engendered hostility and antagonism from certain Board members.” Farrell was replaced later that year by Doucette. Within the next year or so, O’Donnell was promoted to bookkeeper and then systems manager, positions in which she had some auditing and oversight functions.

In November 2000, Doucette hired her daughter Linda as bookkeeper. O’Donnell complained to Doucette and the Board that Linda was not qualified and was being paid more than the CBA schedule provided. O’Donnell says that then Doucette

began a course of retaliation, intimidation and interference directed at Mrs. O’Donnell .... [including] verbally harassing] and intimidating] Mrs. O’Donnell, obstructing] performance of her duties, and preventing] her from fully participating in managerial tasks that would allow her to maintain or advance her position in the Credit Union.

On O’Donnell’s account, Doucette’s behavior toward O’Donnell worsened when O’Donnell reported serious misconduct by Linda, 1 who was finally terminated in February 2003.

When the most serious charges of wrongdoing by Linda were reported to the state banking commission, O’Donnell claims Credit Union Board members Francis and Boggs blamed her and “hostile[ly] and antagonistically] ... retaliated by obstructing the performance of her duties.” O’Donnell discovered that she had been locked out of a computer system and could no longer monitor Linda’s still-active Credit Union account; when she told the Board, Boggs simply ordered her to clear certain checks submitted by Linda. By August 2003, O’Donnell says Doucette had expanded her retaliatory and intimidating conduct, including “daily verbal abuse, almost weekly acts of physical violence ... and weekly interference with the performance of Mrs. O’Donnell’s duties,” which “resulted in both actual physical, emotional and professional injury” to O’Donnell.

*53 As a result, O’Donnell says that upon prudent medical advice, she stopped working on August 15, 2003, citing stress-related reasons. In late November 2003, the Credit Union requested that she provide a doctor’s report, but she did not do so. She exhausted her sick leave and vacation time by December 2003, asked for further leave, and was refused because the Board concluded that Doucette had not committed any wrongful conduct that would warrant O’Donnell’s leave of absence and, additionally, because O’Donnell had provided no medical evidence to show her need for the leave.

After a further warning that O’Donnell must return to work or face termination, O’Donnell was terminated. Local 6 filed a grievance on her behalf, claiming unjust termination in violation of the CBA; but it eventually withdrew the grievance, stating that the case lacked merit and that the Credit Union had not violated the CBA. O’Donnell then charged Local 6 with inadequate representation, but a regional director of the National Labor Relations Board dismissed the charge and O’Donnell’s internal administrative appeal failed.

In the meantime, in April 2005, O’Donnell filed a lawsuit in Massachusetts Superior Court, alleging two counts of tortious interference of contractual relations — one against her supervisor Doucette, and one against Board members Boggs, Hall, Francis, and Meighan. The defendants removed the case to federal district court, arguing that section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a) (2006), preempted O’Donnell’s state law tort claims; and they thereafter moved for summary judgment on the same ground.

There followed a second complaint by O’Donnell in federal court, which added another claim and was consolidated with the first; the district court permitted O’Donnell to file an amended complaint in the consolidated case that added yet another claim; and magistrate judge recommendations were issued on the first complaint and the amended one.

In the end the district court agreed that the tortious interference claims were preempted and their dismissal alone is challenged by O’Donnell on this appeal. Several other claims made by O’Donnell were dismissed on other grounds but O’Donnell has not challenged those dispositions. The district court’s preemption ruling is primarily a legal issue subject to de novo review. Southex Exhibitions, Inc. v. R.I. Builders Ass’n, 279 F.3d 94, 98 (1st Cir.2002).

On its face, section 301 merely confers federal court jurisdiction over “[sjuits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce,” 29 U.S.C. § 185(a), but the Supreme Court has deemed such contracts creatures of federal law, whatever the intent of the parties, Textile Workers v. Lincoln Mills, 353 U.S. 448, 451, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); and the Court treats section 301 as a warrant both for removing to federal court state law claims preempted by section 301 and then dismissing them. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220-21, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985); Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 390 U.S. 557, 559-60, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968).

The phrase “complete preemption” is often used in describing this state of affairs, Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 8, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003), and it applies most readily to state-law contract claims purporting to enforce CBAs covered by section 301, Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, *54 101-03 & n. 9, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962). But the doctrine extends beyond this point to other claims, including purported state law tort claims, whose enforcement interferes with federal labor law and policy. Allis-Chalmers, 471 U.S. at 210-13, 105 S.Ct. 1904. “Just how far beyond has never been precisely settled.” Martin v. Shaw’s Supermarkets, Inc., 105 F.3d 40, 42 (1st Cir.1997).

Pertinent to the present appeal, the Supreme Court has declared that state law claims are preempted under section 301 if they “require construing the collective-bargaining agreement” because of the congressional interest in uniform interpretation of collective bargaining agreements. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). No Supreme Court decision has addressed directly preemption of tortious interference claims under section 301, but many federal courts of appeals have done so, and a' number including our own have found certain such claims preempted under section 301 where deciding them would require the court to interpret a CBA. 2

Whether a given claim is completely preempted depends importantly on the elements of that claim under state law and the content of the applicable CBA. DeCoe v. Gen. Motors Corp., 32 F.3d 212, 216-18 (6th Cir.1994); Covenant Coal, 977 F.2d at 899. Massachusetts imposes liability for intentional interference with contractual relations on two different bases: interference by the defendant with a third party’s performance of its contract with the plaintiff, and interference by the defendant with the plaintiff’s performance of its contractual obligations with the third party. Shafir v. Steele, 431 Mass. 365, 727 N.E.2d 1140, 1143-14 (2000). See generally Restatement (Second) of Torts §§ 766, 766A (1979).

The elements of tortious interference with contractual relations, common to both theories of the toft under Massachusetts law, are as follows:

[T]he plaintiff must prove that (1) he had a contract with a third party; (2) the defendant knowingly interfered with that contract [by inhibiting the third party’s or the plaintiffs performance thereof, depending on the theory]; (3) the defendant’s interference, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant’s actions.

Harrison v. NetCentric Corp., 433 Mass. 465, 744 N.E.2d 622, 632 (2001).

What is special about O’Donnell’s claim in this case is that the defendants accused of interfering with O’Donnell’s contractual rights with her employer — her supervisor Doucette and several members of the Board — are agents of the employer itself. The problems of separating unlawful interference from management’s lawful control of its employees are obvious and Massachusetts law imposes special restrictions on tortious interference claims by employees against agents of the employer. 3

*55 Invoking both theories available under Massachusetts law, O’Donnell alleged in her complaint as amended that Doucette and the Board members knowingly acted in such a manner as “to induce the Credit Union to terminate [O’Donnell’s] employment relationship” and “to cause O’Donnell injury and prevent her from fully performing her required duties for the Credit Union.” She referred to both theories in her opposition to the defendant’s final motion for summary judgment.

O’Donnell’s claim based on what she calls the “second distinct period of tortious interference” — the Board’s decision to terminate her employment — is clearly preempted. No court or jury could decide whether the Board’s termination of O’Donnell was improper without interpreting the CBA’s terms, including articles XV and XX concerning leaves of absence and permissible discharges. 4 As the Eighth Circuit explained in Holschen, 598 F.3d at 461, any expectancy of employment interfered with “cannot be contrary to the terms of the contract on which the expectancy depends.”

On appeal, O’Donnell claims the district court did not adequately separate out and examine the “first discrete period” of alleged tortious interference — namely, the claimed harassment and retaliation by Doucette (and perhaps on one or more occasions by individual Board members) that led up to O’Donnell’s August 15, 2003, abandonment of work. The parties dispute whether O’Donnell preserved this line of argument in the district court, but O’Donnell did invoke such conduct as interference. Anyway, claims based on that first period are also preempted even if examined independently.

O’Donnell’s argument is that the actions of Doucette (and perhaps other Board members) were sufficiently hostile and disruptive that they made her unable to carry out her own duties, caused her need for medical leave, and made it impossible for her to return to work in accordance with her contractual obligations after her leave was exhausted. This claim might fit the latter of the two theories of tortious interference under Massachusetts law set forth above, subject to the further requirement under state law to show malice. See note 3, above.

The question remains whether such a claim would require interpreting the CBA, and the answer is not straightforward. On the one hand, O’Donnell has alleged as facts classic abusive treatment by Doucette motivated purely by personal resentment for the unmasking of misconduct by Doucette’s daughter. Hawaiian Airlines v. Norris, 512 U.S. 246, 261, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994) (preemption not triggered by “purely factual questions ... [that] do not require a court to interpret any term of a collective bargaining agreement” (internal quotation marks omitted)). On the other hand, the claim asserted is that the conduct involved improper interference by a supervisor and Board members with an employee’s performance of her duties. It is not easy to see how one could avoid considering the collective bargaining agreement.

Specifically, recognizing that the gravamen of the claim is “interference” with the contract, Doucette and any Board member *56 might be expected to defend various of the acts charged, to the extent their commission is admitted, as justified by supervisory and Board responsibilities authorized by the contract. Reproofs that O’Donnell regards as harassment would, from Doucette’s point of view, be the censuring of an overzealous employee, and relevantly limiting O’Donnell’s computer access might be defended as a proper response to O’Donnell’s own prior behavior.

The CBA has a standard, broad management rights clause which reserves for the Credit Union “all management rights, powers, authority and functions” and “the sole and exclusive right to manage its business in every respect and to take any other action which the Credit Union deems desirable to the conduct of its business.” This clause seemingly bears on Doucette’s authority and that of any Board member acting individually, and a number of cases, including one of our own, rely on such clauses as the basis for complete preemption of employee claims of interference with contractual relations. 5

O’Donnell’s claim cannot be resolved without deciding, at a minimum, whether Doucette’s and the Board members’ conduct constituted — in the language of the management rights clause — “action which the Credit Union deems desirable to the conduct of its business.” This is so even if Doucette (or, less plausibly, the other defendants) had personal motives. O’Donnell and the defendants disagree about whether the clause encompasses that eon-duct; thus there is a “real interpretive dispute” implicating the CBA. Martin, 105 F.3d at 42.

The Supreme Court has carved out and protected from complete preemption certain types of claims which it has variously characterized; but the common denominator is that they depend on an obligation, usually rooted in public policy, that goes beyond the interests of the individual claimant. 6 So far as they concern interference with contractual obligations, the tort claims in this case are not of that character. O’Donnell did make a different claim based on a whistleblower statute, but it was dismissed on other grounds and that dismissal has not been appealed.

Finally, although not part of our analysis, we note that O’Donnell’s wrongful discharge claim was the subject of a grievance by the union, which included its assertion that “one of the root causes for Paula’s absences was on the job stress from a relationship between Paula and Marion Doucette.” The union ultimately decided the grievance lacked merit, but at least this is not the more troubling case in which there is a preempted claim without the availability of a remedy under the CBA.

Affirmed.