
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.                    ________                                        ____________________          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).                                          9
