Bevis v. United States

• Court: Court of Appeals for the First Circuit
• Decided: January 24, 1992
• Docket: 91-1665
• Status: Published

Opinion

USCA1 Opinion

January 24, 1992
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

No.  91-1665

LAWRENCE S. BEVIS, JR., ETC.,
                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,
                                 Defendant, Appellee.

                                 ____________________

                                     ERRATA SHEET

Please make  the  following  correction  on  opinion  issued
          January 15, 1992:

          Cover sheet:  delete "and Paul Levenson".

___________________

No. 91-1665

LAWRENCE S. BEVIS, JR., ETC.,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. A. David Mazzone, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                               Campbell, Selya and Cyr,
                                   Circuit Judges.
                                   ______________

                                 ___________________

               William T. Desmond on brief for appellant.
               __________________
               Wayne  A. Budd,  United  States  Attorney,  and  William  L.
               ______________                                   ___________
          Parker, Assistant United  States Attorney, on Motion  for Summary
          ______
          Affirmance for appellee.

__________________

                                 __________________ 

Per  Curiam.    On  August  8,  1988,  the  Lowell  Sun
                    ___________

          published a  photo of a patient  being attended by doctors  in an

          intensive care  unit of a  veterans hospital.  Claiming  that the

          patient in  the photograph was  Lawrence S. Bevis, Sr.,  and that

          the photograph  had been  taken without  Bevis's permission,  the

          administrator  of Bevis's estate  filed law suits  complaining of

          the actions  of  government employees  in  allowing Bevis  to  be

          photographed.   The  administrator  contended that  photographing

          Bevis violated Bevis's constitutional and state law (Mass. G.  L.

          ch. 214,   1B) right to privacy as well as 5 U.S.C.   552a(b).

                    The  government  moved   for  summary  judgment.     It

          submitted a copy  of the photo and asserted,  among other things,

          that Bevis's privacy rights could not possibly have been violated

          because the patient in  the photograph was obscured by  equipment

          and personnel and was not identifiable.

                    Accompanying  the government's  motion were  affidavits

          from the  public affairs  specialist at the  VA hospital  and the

          Lowell Sun photographer  who had taken the picture.   The special

          affairs officer asserted  that the public "has  general access to

          the hospital.  Accordingly, patients in their beds are subject to

          being  observed  by visitors,  contractors,  volunteers, interns,

          residents and  the news media,  among others  ...."   It was  her

          opinion that  "patients have no expectation of privacy from being

          observed while in the hospital."   She had accompanied the Lowell

          Sun photographer  on a tour of the  hospital and had explained to

          him that VA policy precluded  the taking of "pictures of patients

2

who could  be identified  without first  obtaining their  written

          consent on  VA form 10-3203."   The photo  had been taken  in the

          intensive care unit with the public affairs specialist's consent,

          from a  position in which  the patient was not  identifiable, and

          with the agreement that  the photo would not be published  in the

          unlikely event that the patient could  be identified.

                    An  affidavit from the  then director of  the intensive

          care  unit  stated  that  on  July  17  (the   day  the  ICU  was

          photographed),  Bevis  had become unconscious.  He  died two days

          later without gaining consciousness.

                    Plaintiff administrator opposed the government's motion

          for  summary  judgment, but  filed  no counter  affidavits.   The

          district  court  thereafter  entered  summary  judgment  for  the

          government on the ground that no invasion of privacy had occurred

          as the patient  was unidentifiable.  Plaintiff  administrator has

          appealed.

                                         I  
                                         _

                    We  have  examined the  photograph.   To  be  sure, the

          question  whether a photograph identifies the plaintiff may often

          present  a fact question.    See, e.g.,  Cohen v. Herbal Concepts
                                       ___  ___    _____    _______________

          Inc.,  100  A.D.2d  175,  473  N.Y.S. 2d  426  (App.  Div.  1984)
          ___

          (identity of nude subjects whose faces were not shown  but one of

          whom had distinctive short hair and dimples was factual issue for

          trial), aff'd,  63 N.Y.2d 379,  472 N.E.2d 307, 482  N.Y.S.2d 457
                  _____

          (1984).  Here, however, we agree with the district court that the

          patient in the photograph is not identifiable as a matter of law.

3

The foreground of the photo shows medical equipment and a nurse.

          Behind the equipment and partially  blocked by it is the patient,

          draped with a  sheet.  Neither  the patient's face nor  any other

          part of the patient's body is discernable.   Consequently, to the

          extent  the  claim  of  invasion  of privacy  was  based  on  the

          publication  of the  photograph,  summary judgment  was  properly

          granted for the government.1

                                          II
                                          __

                    Plaintiff argues, however, that  an invasion of privacy

          occurs  when  a  photographer  is  allowed  by  the  hospital  to

          photograph a patient without the  patient's permission regardless

          whether  the  picture   is  ever  published  or  the  patient  is

          identifiable.    Consequently,  plaintiff  argues,  even  if  the

          patient in the photograph can not be identified, that fact is not

          fatal to plaintiff's  cause of action.  We turn to this argument,

          addressing each of plaintiff's three legal bases.

                    1. FTCA Claim

                    Under the FTCA,  the government is liable  for injuries

          caused by  a government  employee "if a  private person  would be

          liable  to the claimant in  accordance with the  law of the place

          where the act or omission occurred."  28 U.S.C.   1346(b).  Here,

          the  actions occurred  in  Massachusetts,  so  Massachusetts  law
                              
          ____________________

               1  Since the  photograph can  not  be said  to identify  the
          deceased, we need not address  whether the publication of a photo
          after the  subject's death could  ever be actionable.   Miller v.
                                                                  ______
          National Broadcasting Company,  187 Cal. App. 3d 1463,  1485, 232
          _____________________________
          Cal. Rptr. 668 (1986) (right of privacy dies with the person); W.
          Prosser, Law of  Torts 815 (no common  law right of action  for a
          publication concerning one who is dead).

                                          4

controls.  Massachusetts law provides as follow:  "A person shall

          have  a  right  against   unreasonable,  substantial  or  serious

          interference with his privacy."   Mass. G.L. ch. 214,    1B.  The

          precise contours of the privacy  right have not been spelled out,

          but  Massachusetts courts have looked to the Restatement (Second)

          of Torts for reference.  See, e.g.  Cefalu v. Globe Newspaper Co,
                                   ___  ___   ______    __________________

          8 Mass.  App. Ct. 71,  391 N.E.2d 935 (1979)  (noting distinction

          Restatement  (Second) of  Torts draws  between  publication of  a

          picture taken  on a public  street (which is  not an invasion  of

          privacy) and  one taken  in a  private place  (which would  be an

          invasion of  privacy) and concluding  that a  newspaper photo  of

          plaintiff  standing  with  others  in  a  line  for  unemployment

          benefits did not violate plaintiff's privacy as  plaintiff was in

          a public place), cert. denied, 444 U.S. 1060 (1980).
                           ____  ______

                    Although neither party refers  to it, the  Restatement,

          in turn, provides  perhaps the strongest support  for plaintiff's

          argument that the mere photographing of a patient -- even if  the

          photo is never  published -- may  violate the patient's  privacy.

          The relevant provision provides as follows:

                 652B.  Intrusion upon Seclusion

               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.

          Restatement (Second)  of Torts    652B (1977).  Comments a  and b

          underscore that publication is not required:

               a.   The form  of invasion of  privacy covered  by this

                                          5

Section does not depend upon any publicity given to the
               person whose interest is invaded or to his affairs.  It
               consists solely of an intentional interference with his
               interest in  solitude or  seclusion, either  as to  his
               person or as  to his private affairs or  concerns, of a
               kind that  would be  highly offensive  to a  reasonable
               man.

               . . .

               b.  . .  . . The  intrusion itself makes the  defendant
               subject  to   liability,  even   though  there   is  no
               publication  or other use of any kind of the photograph
               or information outlined.

          As an  example  of an  actionable intrusion  upon seclusion,  the

          Restatement refers to a reporter photographing a hospital patient

          without the patient's permission:

Illustrations:

               1.   A, a  woman, is  sick in  a hospital  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.

                    Causes   of  action   have   been  stated   in  various

          circumstances  involving  unreasonable  intrusion  upon  hospital

          patients' privacy.  See, e.g., Barber v. Time, Inc, 348 Mo. 1199,
                              ___  ___   ______    _________

          159 S.W.2d  291 (1942)  (close-up photo of  patient taken  in her

          hospital room without her permission);  Noble v. Sears, Roebuck &
                                                  _____    ________________

          Co.,  33 Cal.  App. 3d 654,  659, 109  Cal. Rptr. 269  (1973) (if
          __

          private  investigator  did  in fact  gain  entrance  to patient's

          hospital  room  and  obtain information  by  deception,  then his

          conduct   may   indeed   have   been   unreasonably   intrusive);

          Commonwealth v.  Wiseman, 356  Mass. 251,  249 N.E.2d 610  (1969)
          ____________     _______

          (restricting   audience  which  may  view  film  of  patients  at

                                          6

Bridgewater State Hospital), cert. denied, 398 U.S. 960 (1970).
                                       ____  ______

                    Superficially, there  may be a resemblance  between the

          present case and the Restatement  illustration.  In both cases, a

          patient  was photographed without the patient's permission.  But,

          in addition to the  fact that the defendants in the  present case

          were the hospital  employees rather than the  photographer, there

          is  a major and  dispositive difference between  the illustration

          which,   we  think,  assumes  unilateral  action  by  a  reporter

          unauthorized  by the  hospital, and the  present case,  where the

          photographer  was accompanied  by hospital personnel and directed

          not to  take photos in  which any patient would  be identifiable.

          Escorting  by hospital  personnel, whose  jobs  render them  more

          sensitive to and protective of patients' concerns  than would the

          unchecked  photographer  roaming at  will,  provides a  safeguard

          against  unreasonable intrusion.    To  be sure,  it  may not  be

          foolproof.    In other  words,  we do  not now  decide  whether a

          hospital  escort would  invariably foreclose  any  claim for  the

          intrusion  upon seclusion  branch  of  the  tort of  invasion  of

          privacy.2    But,   in  the  present  case,   the  uncontradicted

          affidavits  disclose nothing  unduly  intrusive or  unreasonable.

____________________

               2 See, e.g. Knight v. Penobscot Bay Medical Center, 420 A.2d
                 ___  ___  ______    ____________________________
          915, 917,  918 (Me.  1980) (invasion of  privacy action  in which
          hospital nurse  permitted nurse's husband to view the delivery of
          plaintiff's   baby  submitted  to   the  jury;  jury   found  for
          defendants);  Y.G. v. The Jewish Hosp.  of St. Louis, 795 S.W. 2d
                        ____    ______________________________
          488  (Mo.   App.  1990)   (allegations   that  hospital   invited
          participants in the  in vitro fertilization  program  to a social
          gathering  assuring them that no  publicity would occur, but then
          permitted a news team to film the event, stated a cause of action
          for invasion of privacy).  

                                          7

The photographer, according to his  affidavit, stood 20 feet from

          the patient's bed.   The patient did not face the camera, did not

          appear to be aware of the photographer, and was "not undressed or

          in a compromising position."  The photographer's obscured viewing

          of the patient  was no more intrusive than that of, say, a flower

          delivery person  passing through  the unit  or another  patient's

          wayward  visitor.     In   other  words,   by  accompanying   the

          photographer through the unit and allowing photos only so long as

          the patient could not be identified, the hospital did not subject

          patients  to any  materially different  disturbance or  intrusion

          than  that  to which  they  are  normally  exposed in  the  daily

          operation of the hospital.         To be actionable, an intrusion

          must be "highly offensive to  a reasonable person."   Restatement

          (Second) of Torts    652B (1977).  See  also Restatement (Second)
                                             ___  ____

          of  Torts,   652B, comment d (1977) ("there is . . . no liability

          unless  the  interference  with the  plaintiff's  seclusion  is a

          substantial one, of a kind that would be highly offensive to  the

          ordinary reasonable  man, as the  result of conduct to  which the

          reasonable   man   would    strongly   object").      Defendants'

          uncontradicted  affidavits  reveal  nothing  "highly  offensive."

          Plaintiff failed to  present any genuine  issue of material  fact

          for trial.  Consequently, summary  judgment on the FTCA claim was

          proper.3
                              
          ____________________

               3In view  of our disposition,  we need not decide  whether a
          cause  of  action for  the  intrusion  upon  seclusion branch  of
          invasion of privacy would survive the injured party's death.  See
                                                                        ___
          Pine  v. Rust,  404 Mass  411, 535  N.E.2d 1247 (1989)  (cause of
          ____     ____
          action  under G.L.  ch. 272,     99 for  illegal interception  of

                                          8

2.  5 U.S.C.   552a(b)

                    This statute, which forbids  any agency from disclosing

          any "record  which is  contained in a  system of  records" except

          under  specified circumstances  is  irrelevant  as  there  is  no

          indication that  any record was  disclosed.  Plaintiff  failed to

          articulate any violation.

                    3.  Constitution

                    As  we have  concluded  as  a matter  of  law that  the

          patient  in  the   photograph  is  unrecognizable  and   that  no

          unreasonable  intrusion   occurred,  no   federal  constitutional

          privacy right was violated.

                    Affirmed.
                    ________

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          private  communications  did   not  survive  plaintiff's  death);
          Harrison v.  Royal Protective Life  Ins. Co., 379 Mass.  212, 396
          ________     ______________________________
          N.E.2d  987 (1979)  (tort action  for  intentional infliction  of
          emotional distress survives death of injured party).

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