18 Cal. 4th 200, 74 Cal. Rptr. 2d 843, 955 P.2d 469 (1998)
On June 24, 1990, 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.1
Ruth, the most seriously injured, was pinned under the car.2 Both Ruth and Wayne had to be cut free from the vehicle by the jaws of life.3
A rescue helicopter operated by Mercy Air was dispatched to the scene.4 The flight nurse was Laura Carnahan.5 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.6 Cooke was recording the rescue operation for later broadcast.7
Cooke roamed the accident scene, videotaping the rescue.8 Nurse Carnahan wore a wireless microphone that picked up her conversations with both Ruth and the other rescue personnel.9 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.10
The segment showed the helicopter arriving, Carnahan speaking with rescue workers, Ruth being extricated while trapped under the car, Ruth's statements during extrication including her age, questions about whether she was dreaming, and repeated statements that she just wanted to die, the loading into the helicopter, transmission of vital signs during the flight, arrival at the hospital, and Ruth's statements about her upper back hurting.11 Wayne appeared only fleetingly and was never heard.12 Ruth's full name was not used, but her first name was spoken and her voice and general appearance were shown.13
The accident left Ruth a paraplegic.14 When the segment was broadcast, Wayne phoned Ruth in her hospital room and told her to turn on the television.15 Ruth was shocked that the rescue had been recorded and broadcast without her knowledge or consent.16 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."17 Asked at deposition what part of the broadcast material she considered private, Ruth explained that the whole scene was pretty private, it was gruesome, she certainly did not look her best, and it was not for the public to see the trauma she was going through.18
Ruth and Wayne sued the producers of On Scene: Emergency Response.19 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.20 Defendants moved for summary judgment.21 The trial court granted the motion.22 The Court of Appeal reversed and remanded for further proceedings on limited grounds.23
Whether the broadcast of Ruth Shulman's rescue, extrication, medical treatment, and statements gave rise to a viable claim for publication of private facts?24
The elements of the publication of private facts tort are (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.25 Lack of newsworthiness is an element of the tort, making newsworthiness a complete bar to liability under California common law.26 The constitutional privilege for truthful publication of newsworthy material aligns with this standard.27
No. The subject matter of the broadcast as a whole concerned automobile accidents and emergency rescue services, both matters of legitimate public concern because any member of the public may someday need such services.28
Ruth's appearance, physical condition, and statements during extrication and transport bore a logical relationship to the newsworthy subject because they illustrated the challenges faced by flight nurse Carnahan in communicating with and treating a severely traumatized patient.29 The material was not so lurid or intensely personal that its intrusiveness was disproportionate to its relevance.30 The broadcast used Ruth's first name without her full name or direct facial display while the accident circumstances had already appeared in a newspaper.31
Because the broadcast was newsworthy as a matter of law, Ruth cannot establish the lack of legitimate public concern element of the tort.32
Summary judgment was proper on both plaintiffs' causes of action for publication of private facts.33
Related opinions on this issue
Joined by Mosk, J., Concurred.
Justice Kennard concurred in the result on the publication of private facts claim.34 She expressed concern that the newsworthiness standard may conflict with First Amendment doctrine because it turns on subjective content-based judgments about whether speech is legitimate or morbid.35 She noted that the United States Supreme Court has not fashioned a general rule reconciling privacy and press interests.36
She would resolve such tensions through case-by-case adjudication rather than a broad rule that could suppress truthful speech.37 She observed that content-based restrictions on speech bear a heavy burden because the point of speech protection is to shield choices of content that in someone's eyes are misguided or even hurtful.38
Whether defendants' recording of events inside the rescue helicopter and at the accident scene gave rise to a viable claim for intrusion upon seclusion?39
The tort of intrusion requires (1) an intentional intrusion into a private place, conversation or matter in which the plaintiff has an objectively reasonable expectation of seclusion or solitude and (2) that the intrusion would be highly offensive to a reasonable person.40 The press has no special constitutional privilege to intrude physically or with recording equipment into places or conversations that would otherwise be private.41
Yes. Plaintiffs had no reasonable expectation of privacy at the open accident scene itself because journalists commonly attend such scenes and the property was not under plaintiffs' control.
However, triable issues exist as to whether plaintiffs had an objectively reasonable expectation of privacy in the interior of the rescue helicopter, which functions as an airborne ambulance where social custom and analogy to a hospital room support seclusion from media.42
Triable issues also exist as to whether Ruth had a reasonable expectation of privacy in her conversations with Nurse Carnahan and other rescuers at the scene and during transport.43 Medical communications carry a traditional expectation of privacy supported by the physician-patient privilege and the Invasion of Privacy Act.44
The use of a wireless microphone on Carnahan to record those conversations and the presence of the cameraman inside the helicopter could be found highly offensive when done without consent for purposes of later broadcast.
Summary judgment was not proper on the intrusion claims; triable issues of fact remain for trial.45
Related opinions on this issue
Joined by Mosk, J., Concurred.
Justice Chin concurred in the result on publication of private facts but dissented on intrusion. He concluded that no reasonable trier of fact could find the recording highly offensive because defendants did not interfere with rescue efforts.46 They did not elicit embarrassing information or act with malicious motive.47
Their purpose was to obtain accurate footage of a newsworthy event.48 Any technical violation of recording law was not sufficiently offensive to support liability.49 He would have reversed the judgment of the Court of Appeal with directions to affirm the summary judgment for defendants on all causes of action.50
Joined by Baxter, J., Concurred.
Justice Brown concurred in the conclusion that summary judgment should not have been granted on the intrusion claim.51 She generally concurred in the plurality's analysis of that cause of action. She emphasized that the depth of the intrusion into private affairs and the lawfulness of the news media's conduct are relevant to both the publication of private facts and the intrusion causes of action.52
The surreptitious recording of confidential medical conversations supported finding triable issues on whether the intrusion was highly offensive.53 She would have affirmed the Court of Appeal judgment in its entirety.54
Whether the cameraman's presence and microphone recording at the accident scene and in the helicopter raised triable issues of fact on the intrusion claim?55
To prove actionable intrusion the plaintiff must show the defendant penetrated a zone of physical or sensory privacy or obtained unwanted access to private data and that the plaintiff had an objectively reasonable expectation of seclusion.56 The press has no special constitutional privilege to intrude physically or with recording equipment into places or conversations that would otherwise be private.
Yes. The cameraman's mere presence and filming at the open accident scene did not raise a triable issue because plaintiffs could not reasonably expect to exclude media from a public rescue on state property.
However, the cameraman's entry into the helicopter with the patients and the placement of a wireless microphone on Nurse Carnahan to record conversations that occurred in settings where Ruth could reasonably expect privacy created triable issues.
The record shows the rescue occurred in a ditch below the highway where passersby could not observe or hear the conversations, supporting a reasonable expectation that medical discussions would remain private.57
Whether these methods were highly offensive when used by journalists to document emergency care is a question for the jury.58
The Court of Appeal correctly identified triable issues on the intrusion claim arising from recording inside the helicopter and at the accident scene.59