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Louisiana State Univ.

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Monday, May 14, 2007

Tenth Circuit Grants Summary Judgment to Magazine, Photographer for Publication of Photo of Deceased Soldier In Open Casket

The Tenth Circuit has affirmed a lower court decision granting summary judgment on the following claims: "Intentional Infliction of Emotional Distress (Count 1); Invasion of Privacy (Count II)...Violation of Okla. Stat. tit. 21, ยง 839.1 (Count III); Fraudulent /False Misrepresentation (Count IV); Constructive Fraud, Fraud and Deceit (Count V); Unjust Enrichment (Count VI); and Negligent Hiring, Retention, and Supervision (Count VII)"against defendants Harper's Magazine Foundation and photographer Peter Turnley for publication of a deceased soldier in his casket.

The family had allowed media to attend the funeral but "did not want anyone taking pictures of Sgt. Brinlee's open casket, and they did not want to be interviewed." Nevertheless Mr. Turnley, a renowned photographer, attended the service, took photographs, and later published one along with similar ones as part of a photo-essay entitled "The Bereaved, Mourning the Dead, in America and Iraq" in Harper's Magazine in August 2004. The family sued.

With regard to the IIED claim, the 10th circuit found that "neither the photograph, nor the alleged breach of an agreement by Mr. Turnley constituted conduct that was so extreme and outrageous "as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."...The fact that the photograph was of a deceased's body is not, standing alone, outrageous, even if it was unauthorized....Further, it is undisputed that the photograph accurately reflects the image of Sgt. Brinlee's funeral and open casket, as seen by the 1200 people in attendance."

With regard to the invasion of privacy claim, "[p]laintiffs assert three of the four branches of the tort of invasion of privacy: (1) appropriation; (2) publication of private facts; and (3) intrusion upon seclusion....For these claims, Plaintiffs rely generally on the Supreme Court's decision in National Archives & Records Administration v. Favish....Favish is inapplicable to this analysis because it relies on a statutory privacy right under the FOIA, not a cause of action for invasion of privacy....Moreover, the Supreme Court's discussion in Favish about the cultural history of burial rights of the deceased and surviving family members is inapposite....This type of intrusion and exploitation of the family's grief has traditionally been considered a violation of the family's privacy rights....Indeed, all of the cases cited by the Court in support of its acknowledgment that the common law has recognized a family's right to control the death images of the deceased, involve death images that are gruesome and none involve images displayed at a public funeral....Courts that have found an invasion of privacy have done so when the case involves death-scene images such as crime scene or autopsy photographs. The photographs here are not death-scene photographs, but images of Sgt. Brinlee in his military uniform that accurately depict the image seen by those who attended his funeral to pay their respects. Coupled with the public nature of this funeral, the photographs are distinguishable from those at issue in Favish."

The court also found the plaintiffs' other statutory claims of no merit. WIth regard to the publication of private facts claim, "We agree with Defendants that Plaintiffs opened up the funeral scene to the public eye and can not, therefore, establish that Defendants disclosed private facts by publishing the Turnley Photo. The local newspaper notified the public in advance of the time and place of Sgt. Brinlee's funeral, and it was held in a high school gymnasium to accommodate the large crowd expected to attend."

With regard to the intrusion claims, "We agree with the district court that there was no genuine issue of material fact about whether Mr. Turnley intruded into the private affairs of Plaintiffs for the same reasons that summary judgment is appropriate on the other privacy claims. Even if the Court assumes Plaintiffs can meet their burden of establishing a genuine issue of material fact that an intrusion occurred, there is no evidence upon which a reasonable jury could conclude that the intrusion was highly offensive to a reasonable person. As already discussed, the photographs accurately depicted a funeral that Plaintiffs held out to the public."

With regard to the fraud claim, "Plaintiffs do not allege a contract existed between the parties, but instead base these claims on an unkept promise. Oklahoma law requires the following elements to establish a claim for a false or fraudulent misrepresentation: (1) the defendant made a material misrepresentation; (2) that was false; (3) the defendant made the misrepresentation knowing it was false, or in reckless disregard of the truth; (4) the defendant made the representation with the intention that it should be acted upon by the plaintiff; (5) the plaintiff acted in reliance upon it; and (6) plaintiff thereby suffered injury....Even if Plaintiffs are correct that the district court misapplied agency principles when it granted summary judgment on the fraud claims, Plaintiffs are unable to establish that when Mr. Turnley allegedly promised Mr. Stephens that he would not photograph the open casket, he did not intend to perform that promise. Under Oklahoma law, the general rule is that when a false representation is the basis of the fraud, that representation must relate to existing facts or previously existing facts, and not to promises of some future act....

"Plaintiffs are unable to point the Court to evidence of Mr. Turnley's intent at the time he spoke to Mr. Stephens on the phone prior to the funeral. Instead, they argue that the issue is one of credibility, which should be made by a jury. Yet Plaintiffs produce no evidence refuting Mr. Turnley's stated lack of intent, nor any evidence disputing the credibility of Mr. Turnley's statement that he lacked such intent."

The case is Showler v. Harper's Magazine Foundation, 35 Med. L. Rptr 1577 (2007), decided March 23, 2007. Read the entire ruling here.

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