Shulman v. Group W Productions, Inc.

Brief Fact Summary.

Group W recorded and broadcast the helicopter rescue of the Shulmans without their consent.

Synopsis of Rule of Law.

While a person has no objective, reasonable expectation of privacy at the accident scene itself generally, 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.

Facts.

The Shulmans were injured when their car flipped down an embankment into a state-owned ditch. A rescue helicopter was dispatched by county officials that included a nurse, the pilot, a medic, and Cooke. Cooke was a cameraman employed by Group W who provided a nine-minute tape for broadcast on a segment on rescue operations. Mrs. Shulman and conversations between her and the nurse are shown several times and identified as Ruth on the broadcast. Mrs. Shulman’s son appears only in a glimpse. The Shulmans did not give consent for their accident to be broadcast in the segment.

The Shulmans thereafter sued for invasion of privacy under the theories of intrusion and public disclosure of private facts.

Issue.

Did the Group W’s conduct of hitching a ride on the rescue helicopter and placing a microphone on the nurse to record conversations about Mrs. Shulman’s medical treatment constitute an invasion of privacy?

Held.

Affirmed in part, reversed in part, and remanded.

Yes, the Group W’s conduct of hitching a ride on the rescue helicopter and placing a microphone on the nurse to record conversations about Mrs. Shulman’s medical treatment constitutes an invasion of privacy.

Discussion.

[The Court affirmed the dismissal of the private facts part of both claims.]

Physical intrusion into the home, hospital room, or other place that privacy is legally recognized, as well as unwarranted eavesdropping, wiretapping, or visual/photographic spying, is the most offensive affront to personal freedom and dignity.

In Miller v. National Broadcasting Co., a news organization videotaped the work of emergency medical personnel. There, the court adopted the Restatement’s formulation of the cause of action: (1) intrusion into a private place, conversation or matter; (2) in a manner highly offensive to a reasonable person.

To prove the first element, a plaintiff must show that the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff. The standard is an objective reasonable expectation of privacy.

As for the physical surrounding, the Group W reporter’s mere presence at the accident scene was not a physical or sensory intrusion in the Shulmans’ seclusion because the Shulmans did not own that property where the rescue took place, nor did they have actual control of the premises. Likewise, the Shulmans had no reasonable expectation of privacy that media would not arrive to record the scene of the accident and rescue.

However, a triable issue exists as to whether the Shulmans had an objectively reasonable expectation of privacy inside the rescue helicopter, which served as an ambulance. There is no law that permits the press to hitch a ride in an ambulance and ogle as paramedics care for an injured stranger. Moreover, the accident occurred in a ditch many yards below the highway, such that it would be unlikely that bystanders could observe the accident.

As for Mrs. Shulman’s conversations with the nurse, she was entitled to a degree of privacy in those conversations conveying medical information that the Group W reporter violated by placing a microphone on the nurse’s person to amplify the conversations such that the reporter could hear what would otherwise have been reasonably expected to remain private.

In determining the second element, a court will consider all the circumstances of the intrusion, including its degree and setting and the intruder’s “motives and objectives” to gather news. Though the First Amendment does not immunize the press from liability for torts or crimes committed in an effort to gather news, the First Amendment does provide constitutional protection to the press weighed by a strong societal interest in effective and complete reporting of matters of public concern. Here, a jury could find Group W’s recording of Mrs. Shulman in the rescue helicopter to be highly offensive to a reasonable person because of the placement of the microphone on the nurse and the reporter’s presence in the rescue helicopter on the way to the hospital.