People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 111 Nev. 615

Supreme Court of Nevada

1995

Chapter

18

Title

Privacy

Page

761

Topic

The Privacy Torts

Quick Notes

Something 

Book Name

Torts Cases, Problems, And Exercises.  Weaver, Third Edition.  ISBN:  978-1-4224-7220-0.

Issue

Whether Gesmundo's inquiring video camera gives cause for concern over privacy and gives rise to a tort action against Gesmundo for invasion of Berosini's privacy?  No.

Whether Gesmundos camera was highly offense to a reasonable person?  No.

Procedure

Trial

o         Jury returned verdict on the libel and invasion of privacy claims in the aggregated amount of $4.2 million.

Appellant

o         Affirmed

Supreme

o         Reversed.  The evidence was insufficient to support the jurys verdict..

Facts

Rules

Reason

Pl Bobby Berosini

Df PETA and PAWS

Df Ottavio Gesmundo

What happened?

o         Berosini is a world renowned animal trainer.

o         PETA and PAWS are animal rights organizations.

o         Gesmundo did the actual filming.

Action

o         Alleged that they defamed him and invaded his privacy.

Filming

o         Gesmundo filmed Berosini hitting his trained orangutans.

o         Gesmundo was to put an end to the beatings that he heard backstage.  (This is where the filming was done).

o         He observed the beatings through holes in the stage curtain.

Court Concluded

o         The video was not libelous because what it showed was either true or constitutionally protected opinion.

Jury Two Tort Awards

o         Intrusion on Seclusion Award - $250,000.

o         Appropriation of name or likeness.

o        $500K PETA

o        $250K Jeanne Roush.

Whether Gesmundo's inquiring video camera gives cause for concern over privacy and gives rise to a tort action against Gesmundo for invasion of Berosini's privacy?

To recover for the tort of intrusion, a plaintiff must prove the following elements:

1) an intentional intrusion (physical or otherwise);

2) on the solitude or seclusion of another; AND

3) that would be highly offensive to a reasonable person.

Interest in seclusion or solitude which the law will protect, a plaintiff must show that he or she

1.       She had an actual expectation of seclusion or solitude, AND

2.       That that expectation was objectively reasonable.

Extend To Which Seclusion can be protected

o         Severely limited by the protection that must often be accorded to the freedom of action and expression of those who threaten that seclusion of others.

Berosini Claim

o         Right to be left alone

Rule

o         It is not invasion of privacy to photograph a person in a public place.

Berosini intrusion upon seclusion claim

o         Gesmundo's having "trespassed onto the Stardust Hotel with a video camera" and having "unlawfully filmed Plaintiff Berosini disciplining the orangutans without the Plaintiffs knowledge or consent."

Courts Response

o         It is of no relevance to the intrusion tort that Gesmundo trespassed onto the Stardust Hotel, and

o         It is of no moment that Gesmundo might have "unlawfully" filmed Berosini, UNLESS at the same time he was violating a justifiable expectation of privacy on Berosini's part.

Berosinis Expectation of Privacy Arg

o         He was to be left alone with his animals and trainers for a period of time immediately before going on stage to gain the animals attention.

o         He did not want to have problem on stage.

o         He had nothing to hide and would discipline in the same way

Courts Response

o         Having testified that he would have done the same thing if people were standing there, he can hardly complain about a camera "standing there.

o         If Berosini's expectation was, as he says it is, freedom from distracting intrusion and interference with his animals and his pre-act disciplinary procedures, then Gesmundo's video "filming" did not invade the scope of this expectation.

o         Gesmundo did not intrude upon Berosini's expected seclusion.

Whether Gesmundos camera was highly offense to a reasonable person?  No.

Courts Thoughts

o         Question of first impression in this state.

o         The question of what kinds of conduct will be regarded as a 'highly offensive' intrusion is largely a matter of social conventions and expectations.

Defining Highly Offensive Conduct

1.         The degree of intrusion,

2.         the context, conduct and circumstances surrounding the intrusion as well as the intruder's motives and objectives,

3.         the setting into which he intrudes, and

4.         the expectations of those whose privacy is invaded."

The Degree of Intrusion (Analysis)

o         The video tape was non-intrusive

o         The video tape did not cause an interference

Conduct and circumstances surrounding the intrusion (Analysis)

o         The filming did not take place in a private place like a restroom.

o         It took place backstage where Gesmundo was every night.

Privacy Expectation (Analysis)

o         He did not ask for complete seclusion from prying eyes and ears.

If Berosini suffered as a result of the videotaping, it was not because of any tortious intrusion, it was because of subsequent events that, if remediable, relate to other kinds of tort actions than the intrusion upon seclusion tort.

Reversed

Class Notes