                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           March 23, 2007
                                    TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                            Clerk of Court


 ROBERT SHOWLER AND JOHNNY
 DAVIDSON, individually and as special
 administrator of the Estate of Kyle Adam
 Brinlee,

                Plaintiffs - Appellants,
           v.                                                No. 06-7001
 HARPER’S MAGAZINE                                     (D.C. No. 05-CV-178-S)
 FOUNDATION, PETER TURNLEY,                                  (E. D. Okla.)
 individually and in his capacity as a
 contributing editor to Harper’s Magazine,

                  Defendants - Appellees.
 -------------------------

 DENVER POST CORPORATION;
 MAGAZINE PUBLISHERS OF
 AMERICA; NEWSPAPER
 ASSOCIATION OF AMERICA; NEW
 YORK TIMES COMPANY;
 OKLAHOMA PUBLISHING
 COMPANY; PICTURE ARCHIVE
 COUNCIL OF AMERICA;
 REPORTERS COMMITTEE FOR
 FREEDOM OF THE PRESS; TRIBUNE
 COMPANY,

                Amici Curiae.



                                ORDER AND JUDGMENT *


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
     Before KELLY, BRISCOE, Circuit Judges and ROBINSON, District Judge.**




      Plaintiffs-Appellants Robert Showler and Johnny Davidson filed this suit against

Defendants-Appellees Harper’s Magazine Foundation (“Harper’s”) and Peter Turnley,

alleging they committed various torts when Mr. Turnley took photographs of Sergeant

Kyle Brinlee’s open casket at his funeral, and when Harper’s published, promoted and

sold the photographs. The district court granted summary judgment to Defendants

Harper’s and Peter Turnley, on all claims. Plaintiffs Showler and Davidson now

appeal. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                            I.

      Viewing the evidence in the light most favorable to Plaintiffs, the record

establishes the following facts. See Metzler v. Fed. Home Loan Bank, 464 F.3d 1164,

1166 (10th Cir. 2006). Sgt. Kyle Brinlee was a soldier in the Oklahoma National Guard

who was killed in action while serving in Iraq on May 11, 2004. He was the first

member of the Oklahoma National Guard to be killed in action since the Korean war.

As such, Sgt. Brinlee’s death and funeral were the subject of intense media coverage.

Robert Showler is Sgt. Brinlee’s biological father;1 and Johnny Davidson is his maternal



      **
        Honorable Julie A. Robinson, U.S. District Judge, District of Kansas, sitting by
designation.
      1
              Brinlee was adopted by Robert Brinlee, at which time Showler’s parental
rights were terminated.
                                          -2-
grandfather and the personal representative of his estate.

       Sgt. Brinlee’s family hired Stephens Memorial Chapel in their hometown of

Pryor, Oklahoma to handle the funeral arrangements. The family made the decision to

open Sgt. Brinlee’s casket at the funeral because his “body looked fine.” Prior to the

funeral, the family met with Rick Stephens, who ran the memorial chapel. The family

relayed to Mr. Stephens that although the media was allowed to attend the funeral, the

family did not want anyone taking pictures of Sgt. Brinlee’s open casket, and they did

not want to be interviewed.

       Peter Turnley is an international photojournalist who was working on assignment

for Harper’s. Mr. Turnley is a Contributing Editor engaged on a contract basis to

produce photo-essays. At the time of Sgt. Brinlee’s funeral, Mr. Turnley was working

on a photo-essay for Harper’s concerning those grieving over deaths caused by the war

in Iraq. Prior to Sgt. Brinlee’s funeral, Mr. Turnley contacted Stephens Memorial

Chapel multiple times to ask whether the press would be allowed to attend the funeral.

He spoke to Mr. Stephens twice and the office manager, Louise Floyd, once. Mr.

Stephens informed Mr. Turnley that he could attend the funeral and take photographs,

but that there would be a section at the back of the auditorium designated for the press,

and further, that he could not interview the family.

       The funeral was held at the Pryor High School gymnasium. Over 1200 people

attended the funeral and Governor Brad Henry spoke at the service. Toward the end of

the funeral, Sgt. Brinlee’s casket was moved to the back of the auditorium, in front of


                                            -3-
the main exit, and opened. Governor Henry was the first in a line of people who exited

by filing past the open casket on their way out of the auditorium. Mr. Turnley, along

with other photographers in the press section of the auditorium, took photographs during

the service. Only Mr. Turnley took photographs of Sgt. Brinlee in his open casket.

      After the graveside service, Mr. Turnley approached Mr. Showler and introduced

himself, and then indicated he had photographed the funeral on assignment from

Harper’s. Mr. Turnley asked Mr. Showler if he would like copies of the photographs.

Mr. Showler responded affirmatively and provided Mr. Turnley with his address. Mr.

Showler was unaware that Mr. Turnley had taken photographs of the open casket,

however. Mr. Showler first learned of the open-casket photographs when he received

copies from Mr. Turnley in the mail.

      One of the photographs taken by Mr. Turnley, “the Turnley Photo,” along with

nineteen other photographs dealing with the mourning of Americans and Iraqis killed in

the war, was published in the August 2004 edition of Harper’s. The photo-essay was

titled: “The Bereaved, Mourning the Dead, in America and Iraq.” Harper’s promoted

the photo-essay, and Mr. Turnley conducted interviews about it with news agencies,

appeared in television programs, and entered the photograph in numerous competitions.

Defendants sold the photo-essay to French magazine Le Monde 2 where it was also

published.

      Plaintiffs filed suit in diversity against Mr. Turnley and Harper’s, alleging the

following tort claims: Intentional Infliction of Emotional Distress (Count 1); Invasion of


                                           -4-
Privacy (Count II);2 Violation of Okla. Stat. tit. 21, § 839.1 (Count III); Fraudulent

/False Misrepresentation (Count IV); Constructive Fraud, Fraud and Deceit (Count V);

Unjust Enrichment (Count VI); and Negligent Hiring, Retention, and Supervision

(Count VII).

       On December 22, 2005, the district court entered an order granting Defendants’

motion for summary judgment on all claims. The district court held that Defendants

enjoyed First Amendment protection because the Turnley Photo was taken in a public

place for a newsworthy article and, alternatively, that summary judgment was

appropriate on the merits of each tort claim. This appeal followed.

                                             II.

       On appeal, Plaintiffs assert that the district court erred in granting Defendants’

motion for summary judgment. We review the district court’s grant of summary

judgment de novo, applying the same legal standard as the district court. Mountain

West Mines, Inc. v. Cleveland-Cliffs Iron Co., 470 F.3d 947, 950 (10th Cir. 2006).

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). The inquiry essentially determines

if there is a need for trial, or whether the evidence “is so one-sided that one party must

prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

       2
              Plaintiffs’ claim for invasion of privacy is based on three theories:
appropriation, intrusion into seclusion, and publication of private facts.
                                             -5-
      When examining the underlying facts of the case, the Court is cognizant that all

inferences must be viewed in the light most favorable to the nonmoving party and that it

may not make credibility determinations or weigh the evidence. Matsushita Elec. Indus.

Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). Further, the Court has “discretion to

affirm on any ground adequately supported by the record, so long as the parties have

had a fair opportunity to address that ground.” Champagne Metals v. Ken-Mac Metals,

Inc., 458 F.3d 1073, 1088 (10th Cir. 2006) (quotations omitted).

      Before reaching any constitutional question, “federal courts must consider

nonconstitutional grounds for decision.” Jean v. Nelson, 472 U.S. 846, 854, 105 S. Ct.

2992, 2997 (1985); see also United States v. Hardman, 297 F.3d 1116, 1124 (10th Cir.

2002). Because we determine that none of the tort claims asserted in Plaintiffs’ Second

Amended Complaint can survive summary judgment, we decline to consider whether

Defendants’ actions were privileged under the First Amendment.

      A. Intentional Infliction of Emotional Distress

      Oklahoma has adopted section 46 of the R ESTATEMENT (S ECOND) OF T ORTS

(1977). See Miller v. Miller, 956 P.2d 887, 900 (Okla. 1998). An action for this tort

will lie only where there is extreme and outrageous conduct coupled with severe

emotional distress. Id.

             Liability has been found only where the conduct has been so
             outrageous in character, and so extreme in degree, as to go
             beyond all possible bounds of decency, and to be regarded as
             atrocious, and utterly intolerable in a civilized community.
             Generally, the case is one in which the recitation of the facts
             to an average member of the community would arouse his
                                           -6-
              resentment against the actor, and lead him to exclaim,
              ‘Outrageous!’ . . .

Id. at 901 (quoting R ESTATEMENT (S ECOND) OF T ORTS § 46 cmt. d). Also, the

Defendants’ conduct must be “considered in the setting in which the conduct occurred.”

Chellen v. John Pickle Co., 446 F. Supp. 2d 1247, 1292 (N.D. Okla. 2006) (citing Eddy

v. Brown, 715 P.2d 74, 77 (Okla. 1986)).

       The district court acts as a gatekeeper to determine whether the Defendants’

conduct may reasonably be regarded as sufficiently extreme and outrageous and whether

severe emotional distress can be found based on the evidence. Miller, 956 P.2d at 901;

Breedon v. League Servs. Corp., 575 P.2d 1374, 1377 (Okla. 1978); see R ESTATEMENT

(S ECOND) OF T ORTS § 46 cmt. h. If the court finds that reasonable people would differ

in an assessment of this issue, then the tort claim may be submitted to a jury. See, e.g.,

Breedon, 575 P.2d at 1377. Here, the district court found that the Turnley Photo was

not outrageous. It based its decision on the fact that the photo accurately depicts the

exact image that Plaintiffs chose to expose to approximately 1200 people who attended

Sgt. Brinlee’s funeral. The district court also pointed out that Plaintiffs made the

decision to have an open casket at the funeral because Sgt. Brinlee’s “body looked

fine,” and further found that the mere fact that the photograph was of a deceased person

was not enough to constitute outrageous conduct.

       Plaintiffs argue that whether the photograph was, in and of itself, “grotesque” is

immaterial. Instead, Plaintiffs urge that it was outrageous conduct for Mr. Turnley to


                                            -7-
disregard specific instructions from Mr. Stephens not to photograph the open casket at

the funeral. Because this material fact is in dispute—Mr. Turnley denies that this

condition was placed on his attendance—Plaintiffs maintain that summary judgment was

inappropriate because reasonable minds could differ about whether Mr. Stephens relayed

this condition and therefore, whether Mr. Turnley ignored the condition when he took

the photographs.

       We conclude that neither the photograph, nor the alleged breach of an agreement

by Mr. Turnley constituted conduct that was so extreme and outrageous “as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.” R ESTATEMENT (S ECOND) OF T ORTS § 46 cmt. d.

The fact that the photograph was of a deceased’s body is not, standing alone,

outrageous, even if it was unauthorized. See Cox Tex. Newspapers, L.P. v. Wootten, 59

S.W.3d 717, 724 (Tex. App. 2001) (“Taking pictures of a dead body is not intolerable;

in fact, such pictures are frequently taken in a variety of situations. Publication of the

rather dignified, albeit unauthorized, pictures . . . was not extreme and outrageous

conduct . . . .”). Nor is the fact that the photograph was unauthorized transform Mr.

Turnley’s actions into outrageous conduct. See Loft v. Fuller, 408 So. 2d 619, 621–22

(Fla. Dist. Ct. App. 1981) (finding portrayal of deceased family member in book as a

“ghost,” without permission from his family, did not amount to outrageous conduct).

       Further, it is undisputed that the photograph accurately reflects the image of Sgt.

Brinlee’s funeral and open casket, as seen by the 1200 people in attendance. Compare

                                             -8-
Wootten, 59 S.W.3d at 724 with Reid v. Pierce County, 961 P.2d 333, 338 (Wash. 1998)

(finding disclosure of autopsy photographs of deceased relatives outrageous). Such “fair

and accurate media coverage of official public occasions is in the highest and best

interest of the public, [and] . . . cannot be treated as actionable under this rubric.”

Wright v. Grove Sun Newspaper Co., 873 P.2d 983, 990 (Okla. 1994). Because we

agree with the district court that Defendants’ actions did not rise to the level of extreme

and outrageous conduct, summary judgment was appropriate on this tort claim.

       B. Invasion of Privacy

       Plaintiffs assert three of the four branches of the tort of invasion of privacy: (1)

appropriation; (2) publication of private facts; and (3) intrusion upon seclusion. See

R ESTATEMENT (S ECOND) OF T ORTS §§ 652A–E (1977) (describing the different types of

privacy torts). In addition, Plaintiffs assert a claim under Okla. Stat. tit. 21, § 839.1.

       For these claims, Plaintiffs rely generally on the Supreme Court’s decision in

National Archives & Records Administration v. Favish, which held that the privacy

exemption in the Freedom of Information Act (“FOIA”) recognizes surviving family

members’ right to personal privacy with respect to their close relative’s death-scene

images. 541 U.S. 157, 124 S. Ct. 1570 (2004). That case involved a private citizen

who requested production under the FOIA of death-scene photographs of Vince Foster,

deputy counsel to President Clinton, who was found dead of an apparent suicide.

Plaintiffs particularly rely on language in that case that the common law has long




                                             -9-
recognized “a family’s control over the body and death images of the deceased.”

Favish, 541 U.S. at 168; 124 S. Ct. at 1578.

       Favish is inapplicable to this analysis because it relies on a statutory privacy right

under the FOIA, not a cause of action for invasion of privacy. In fact, the Supreme

Court observed in Favish that “the statutory privacy right protected by Exemption 7(C)

goes beyond the common law and the Constitution.” Id. at 170, 124 S. Ct at 1579

(citing United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489

U.S. 749, 762, 109 S. Ct. 1468, 1476 (1989)). Likewise, the Court stated in Reporters

Committee that “[t]he question of the statutory meaning of privacy under the FOIA is,

of course, not the same as the question whether a tort action might lie for invasion of

privacy or the question whether an individual’s interest in privacy is protected by the

Constitution.” Reporters Committee, 489 U.S. at 763 n.13; 109 S. Ct. at 1476. Here,

the Court will limit its reliance to the case law construing the tort of invasion of privacy

and the specific Oklahoma statute at issue.

       Moreover, the Supreme Court’s discussion in Favish about the cultural history of

burial rights of the deceased and surviving family members is inapposite to the facts of

this case. The Court references “outrage at seeing the bodies of American soldiers

mutilated and dragged through the streets,” Favish, 541 U.S. at 168, 124 S. Ct. at 1578,

as a modern example of “the interests decent people have for those whom they have

lost.” Id. This type of intrusion and exploitation of the family’s grief has traditionally

been considered a violation of the family’s privacy rights. Id. Indeed, all of the cases

                                            -10-
cited by the Court in support of its acknowledgment that the common law has

recognized a family’s right to control the death images of the deceased, involve death

images that are gruesome and none involve images displayed at a public funeral. See id.

at 169, 124 S. Ct. at 1578–79 (collecting cases).

      Courts that have found an invasion of privacy have done so when the case

involves death-scene images such as crime scene or autopsy photographs.3 The

photographs here are not death-scene photographs, but images of Sgt. Brinlee in his

military uniform that accurately depict the image seen by those who attended his funeral

to pay their respects. Coupled with the public nature of this funeral, the photographs are

distinguishable from those at issue in Favish.

      We now address the specific theories of liability asserted by Plaintiffs.

      1. Appropriation and Okla. Stat. Ann. tit. 21, § 839.1

      Oklahoma has codified the cause of action for appropriation of a person’s name

or likeness in Okla. Stat. Ann. tit. 21, § 839.1 (2002). Under the R ESTATEMENT

(S ECOND) OF T ORTS § 652C, “[o]ne who appropriates to his own use or benefit the name


      3
              See, e.g., id. at 161, 124 S. Ct. at 1574; Reid v. Pierce County, 961 P.2d
333, 338 (Wash. 1998); McCambridge v. City of Little Rock, 766 S.W.2d 909, 915 (Ark.
1989); c.f. Bazemore v. Savannah Hosp., 155 S.E. 194 (Ga. 1930) (finding invasion of
privacy where, after performing surgery on a baby born with his heart on the outside of
his body, hospital employees allowed a photographer to photograph the child’s body and
a newspaper to report on the baby’s condition, unbeknownst to the parents.), called into
question by Waters v. Fleetwood, 91 S.E.2d 344, 348 (Ga. 1956). But see Bremmer v.
Journal-Tribune Publ’g Co., 76 N.W.2d 762, 766–67 (Iowa 1956) (explaining that
Bazemore was an extreme set of facts and that the majority of courts have declined to find
liability when the press publish details of gruesome death scenes).
                                              -11-
or likeness of another is subject to liability to the other for invasion of his privacy.”

Plaintiffs appear to bring separate claims for appropriation under both the common law

and statutory law, despite the fact that the statute overlaps with the Restatement’s

formulation of the cause of action. See Le Flore v. Reflections of Tulsa, Inc., 708 P.2d

1068, 1074 (Okla. 1985) (construing claim for appropriation under the Restatement as a

claim under Oklahoma’s appropriation statute). We agree with the district court that

there is no genuine issue of material fact with regard to either source of law on

appropriation.

       Comment d to the R ESTATEMENT § 652C is instructive:


              No one has the right to object merely because his name or
              his appearance is brought before the public, since neither is
              in any way a private matter and both are open to public
              observation. It is only when the publicity is given for the
              purpose of appropriating to the defendant’s benefit the
              commercial or other values associated with the name or the
              likeness that the right of privacy is invaded. The fact that
              the defendant is engaged in the business of publication, for
              example of a newspaper, out of which he makes or seeks to
              make a profit, is not enough to make the incidental
              publication a commercial use of the name or likeness. Thus
              a newspaper, although it is not a philanthropic institution,
              does not become liable under the rule stated in this Section
              to every person whose name or likeness it publishes.

The Court concludes that this comment from the Restatement squarely applies to the

facts presented here. Harper’s is not liable under an appropriation theory simply

because it sought to make a profit via the circulation of its magazine when it published

the photo essay that included the Turnley Photo.

                                             -12-
       With regard to the statute, the district court granted summary judgment on this

claim because there was no evidence of “advertising.” In so holding, the court stated

that Oklahoma had, in the past, sought guidance from New York law when interpreting

this statute because it was patterned after a similar New York law. See Le Flore v.

Reflections of Tulsa, Inc., 708 P.2d 1068, 1074 (Okla. 1985) (discussing the similarity

between New York’s appropriation statute and § 839.2 and looking to New York cases

for guidance). New York law has made clear that right to privacy statutes do not apply

to newsworthy events or matters of public concern because it is not deemed for the

purposes of advertising or trade. See, e.g., Messenger ex rel. Messenger v. Gruner +

Jahr Printing & Publ’g, 94 N.Y.2d 436, 441 (N.Y. 2000).

       The New York Court of Appeals further held that “where a plaintiff’s picture is

used to illustrate an article on a matter of public interest, there can be no liability

. . . unless the picture has no real relationship to the article or the article is an

advertisement in disguise.” Id. at 442. Sgt. Brinlee’s funeral was a matter of public

interest. Local and regional newspapers printed stories and photographs about his death

and funeral. There was particular interest in the story since Sgt. Brinlee was the first

member of the Oklahoma National Guard to be killed in action since the Korean War.

There is no evidence to suggest that the Turnley Photo, or any of the other photographs

taken, were not related to the photo-essay that concerned grieving in the United States

and Iraq over deaths caused by the war in Iraq. And, the fact that the photo essay was

promoted and sold to another publication does not render it an advertisement under the

                                             -13-
statute. Messenger, 94 N.Y.2d at 442 (“[T]he fact that a publication may have used a

person’s name or likeness ‘solely or primarily to increase the circulation’ of a

newsworthy article—and thus to increase profits—does not mean that the name or

likeness has been used for trade purposes within the meaning of the statute.”). The

Turnley Photo did not constitute an appropriation of Sgt. Brinlee’s likeness for

commercial purposes under either the Restatement or the statute and summary judgment

was appropriate on these claims.

       2. Publication of Private Facts

       In order to recover for invasion of privacy by publication of private facts, the

publication must: (1) be highly offensive to a reasonable person; (2) contain private

facts; (3) be a public disclosure of private facts; and (4) not be of legitimate concern to

others. Guinn v. Church of Christ of Collinsville, 775 P.2d 766, 781 (Okla. 1989). The

district court found that Plaintiffs failed to establish that the Turnley Photo contained

private facts about their lives or that there was a public disclosure of a private fact.

Further, the district court found that because the funeral was a newsworthy event, it was

of legitimate concern to others, especially considering the fact that this was the first

Oklahoma National Guardsman to die in combat since the Korean War.

       Plaintiffs argue on appeal that the family’s mourning over Sgt. Brinlee’s death

was a deeply private manner. They also maintain that Mr. Turnley acknowledged this

by contacting Mr. Stephens to request permission to attend, which he would not have

done had he believed it to be a public event. Defendants respond that under Comment a

                                             -14-
to R ESTATEMENT (S ECOND) OF T ORTS § 652D, the Plaintiffs left themselves “open to the

public eye.”

         We agree with Defendants that Plaintiffs opened up the funeral scene to the

public eye and can not, therefore, establish that Defendants disclosed private facts by

publishing the Turnley Photo. The local newspaper notified the public in advance of the

time and place of Sgt. Brinlee’s funeral, and it was held in a high school gymnasium to

accommodate the large crowd expected to attend. Governor Henry spoke at the funeral,

which was attended by 1200 people. Most attendees exited the funeral by first filing

past Sgt. Brinlee’s open casket. Numerous area newspapers published stories about Sgt.

Brinlee’s death and funeral. These facts belie the notion that the Turnley Photo

revealed information that was private and summary judgment is appropriate on this

claim.

         3. 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.” R ESTATEMENT (S ECOND) OF T ORTS § 652B (1977). The Oklahoma Supreme

Court has recognized the following two necessary elements of this claim: (1) a

nonconsensual intrusion, (2) which is highly offensive to a reasonable person. See

Dubbs v. Head Start, Inc., 336 F.3d 1194, 1220 (10th Cir. 2003) (citing Gilmore v.

Enogex, Inc., 878 P.2d 360, 366 (Okla. 1994)). Publication is not necessary to maintain

                                             -15-
an action for this tort; the intrusion itself creates liability. See R ESTATEMENT (S ECOND)

OF   T ORTS § 652B cmt. b.

        We agree with the district court that there was no genuine issue of material fact

about whether Mr. Turnley intruded into the private affairs of Plaintiffs for the same

reasons that summary judgment is appropriate on the other privacy claims. Even if the

Court assumes Plaintiffs can meet their burden of establishing a genuine issue of

material fact that an intrusion occurred, there is no evidence upon which a reasonable

jury could conclude that the intrusion was highly offensive to a reasonable person. As

already discussed, the photographs accurately depicted a funeral that Plaintiffs held out

to the public. Details about the funeral were published in the local newspaper and it

was held in a high school gymnasium in order to accommodate the 1200 people who

attended, which included the Governor of Oklahoma. Mr. Turnley took the photographs

from an area of the high school auditorium that was specifically designated for the press

and other photographers were present. The district court did not err in granting

summary judgment to Defendants on this claim.

        C. Fraud Claims

        Plaintiffs asserted claims for fraudulent or false representation and constructive

fraud based on Mr. Turnley’s conversation with Mr. Stephens in which Plaintiffs argue

Mr. Stephens placed the specific condition on Mr. Turnley’s attendance at the funeral

that he not photograph the open casket. The district court granted summary judgment to

Defendants on these claims because, based on the uncontroverted facts, any

                                            -16-
misrepresentation or fraud committed by Mr. Turnley was made toward Mr. Stephens

and not the Plaintiffs in this matter. Plaintiffs appeal the district court’s order and argue

that it misapplied principles of agency law in granting summary judgment on these

claims.

       Plaintiffs do not allege a contract existed between the parties, but instead base

these claims on an unkept promise. Oklahoma law requires the following elements to

establish a claim for a false or fraudulent misrepresentation: (1) the defendant made a

material misrepresentation; (2) that was false; (3) the defendant made the

misrepresentation knowing it was false, or in reckless disregard of the truth; (4) the

defendant made the representation with the intention that it should be acted upon by the

plaintiff; (5) the plaintiff acted in reliance upon it; and (6) plaintiff thereby suffered

injury. Sturgeon v. Retherford Publ’ns, Inc., 987 P.2d 1218, 1228 (Okla. Civ. App.

1999) (citing Ramsey v. Fowler, 308 P.2d 654, 656 (Okla. 1957)).

       Even if Plaintiffs are correct that the district court misapplied agency principles

when it granted summary judgment on the fraud claims, Plaintiffs are unable to establish

that when Mr. Turnley allegedly promised Mr. Stephens that he would not photograph

the open casket, he did not intend to perform that promise. Under Oklahoma law, the

general rule is that when a false representation is the basis of the fraud, that

representation must relate to existing facts or previously existing facts, and not to

promises of some future act. Roberts v. Wells Fargo AG Credit Corp., 990 F.2d 1169,

1172 (10th Cir. 1993). An exception to this rule exists where such a promise to act in

                                             -17-
the future is made with the intention not to perform and with the intent to deceive. Id.

“The gist of the rule is not the breach of promise but the fraudulent intent of the

promisor at the time the pledge is made not to perform the promise so made and thereby

deceive the promisee.” Citation Co. Realtors, Inc. v. Lyon, 610 P.2d 788, 790 (Okla.

1980).

         Plaintiffs are unable to point the Court to evidence of Mr. Turnley’s intent at the

time he spoke to Mr. Stephens on the phone prior to the funeral. Instead, they argue

that the issue is one of credibility, which should be made by a jury. Yet Plaintiffs

produce no evidence refuting Mr. Turnley’s stated lack of intent, nor any evidence

disputing the credibility of Mr. Turnley’s statement that he lacked such intent.

         Furthermore, the claims fail because Plaintiffs are unable to establish that they

acted in reliance upon any statement allegedly made by Mr. Turnley. While there is a

disputed fact about whether Mr. Turnley at least implicitly agreed not to photograph

Sgt. Brinlee’s open casket as a condition of his attendance at the funeral, other

photographers were present at the funeral. And there is no evidence that the media was

required to contact Mr. Stephens ahead of time to obtain permission to attend. While

some members of the public did inquire with Stephens Memorial Chapel about whether

the press would be allowed to attend the funeral, there is no evidence that this was

required. The funeral was open to the public, and there were no signs limiting the

photographers’ permission to photograph the funeral. These facts reveal no genuine

issue of material fact about whether Plaintiffs reasonably relied on a promise by Mr.

                                             -18-
Turnley in allowing him to attend as a member of the press. Summary judgment is thus

appropriate on Plaintiffs’ fraud claims.

       D. Unjust Enrichment

       Plaintiffs’ claim for unjust enrichment is based on the allegation that Defendants

were unjustly enriched by the publication and promotion of the Turnley Photo. “The

term ‘unjust enrichment’ describes a condition resulting from the failure of a party to

make restitution in circumstances where it is inequitable.” N.C. Corff P’ship v. OXY

USA, Inc., 929 P.2d 288, 295 (Okla. Civ. App. 1996); see also Lapkin v. Garland

Bloodworth, Inc., 23 P.3d 958, 961 (Okla. Civ. App. 2000). Unjust enrichment is a

theory of recovery and requires “enrichment to another coupled with a resulting

injustice.” N.C. Corff P’Ship, 929 P.2d at 295. As the district court properly reasoned,

there is no evidence here of any advantage to Harper’s or Mr. Turnley at the expense of

Plaintiffs. Likewise, there is no evidence of injustice to the Plaintiffs. Plaintiffs argue

that the photo was used to promote the magazine and Mr. Turnley at the expense of

their right to privacy. As this Court has already determined, there is no genuine issue of

material fact with regard to Plaintiffs’ right to privacy claims. Summary judgment was

appropriate on Plaintiffs’ unjust enrichment claim.

       E. Negligent Hiring

       An employer may be held liable in Oklahoma for negligent hiring, supervision, or

retention of an employee. See Escue v. N. Okla. Coll., 450 F.3d 1146, 1156 (10th Cir.

2006); N.H. v. Presbyterian Church (U.S.A.), 998 P.2d 592, 600 (Okla. 1999). The
                                            -19-
employer may be liable, “if—at the critical time of the tortious incident—the employer

had reason to believe that the person would create an undue risk of harm to others.

Employers are held liable for their prior knowledge of the servant’s propensity to

commit the very harm for which damages are sought.” Presbyterian Church (U.S.A.),

998 P.2d at 600. Because we find that summary judgment is appropriate on all of

Plaintiffs’ underlying claims, Harper’s may not be found liable to Plaintiffs based on its

hiring, supervision, or retention of Mr. Turnley. Further, Plaintiffs do not point to any

evidence of prior knowledge by Harper’s of any propensity by Mr. Turnley to commit

any of the torts alleged against Mr. Turnley in the Second Amended Complaint.

                                           III.

       While it could be argued that publication of the Turnley Photo without prior

authorization was in poor taste, for the reasons discussed, it does not constitute an

actionable claim under any of the theories advanced by Plaintiffs. Because we conclude

that summary judgment was appropriate on each of the Oklahoma state tort claims

asserted by Plaintiffs in this action, we need not address the First Amendment defense

asserted by Defendants in this appeal, nor do we make any statement as to the merits of

that defense. The judgment of the district court is affirmed. The motion for leave to

file an amicus brief by Denver Post Corporation, Magazine Publishers of America,

Newspaper Association of America, New York Times Company, Oklahoma Publishing

Company, Picture Archive Council of America, The Reporters Committee for Freedom




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of the Press and Tribune Company is granted.




                                               Entered for the Court




                                               Julie A. Robinson
                                               District Judge




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