USCA1 Opinion
January 24, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-1665
LAWRENCE S. BEVIS, JR., ETC.,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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ERRATA SHEET
Please make the following correction on opinion issued
January 15, 1992:
Cover sheet: delete "and Paul Levenson".
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No. 91-1665
LAWRENCE S. BEVIS, JR., ETC.,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Campbell, Selya and Cyr,
Circuit Judges.
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William T. Desmond on brief for appellant.
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Wayne A. Budd, United States Attorney, and William L.
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Parker, Assistant United States Attorney, on Motion for Summary
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Affirmance for appellee.
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Per Curiam. On August 8, 1988, the Lowell Sun
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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
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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
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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
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Inc., 100 A.D.2d 175, 473 N.Y.S.2d 426 (App. Div. 1984)
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(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
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(1984). Here, however, we agree with the district court that the
patient in the photograph is not identifiable as a matter of law.
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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
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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
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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.
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National Broadcasting Company, 187 Cal. App. 3d 1463, 1485, 232
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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).
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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,
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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).
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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
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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,
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159 S.W.2d 291 (1942) (close-up photo of patient taken in her
hospital room without her permission); Noble v. Sears, Roebuck &
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Co., 33 Cal. App. 3d 654, 659, 109 Cal. Rptr. 269 (1973) (if
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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)
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(restricting audience which may view film of patients at
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Bridgewater State Hospital), cert. denied, 398 U.S. 960 (1970).
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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.
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2 See, e.g. Knight v. Penobscot Bay Medical Center, 420 A.2d
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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
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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).
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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)
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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
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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
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Pine v. Rust, 404 Mass 411, 535 N.E.2d 1247 (1989) (cause of
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action under G.L. ch. 272, 99 for illegal interception of
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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
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N.E.2d 987 (1979) (tort action for intentional infliction of
emotional distress survives death of injured party).
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