Anderson v. WROC-TV

• Decision Date: 13 July 1981
• Docket Number: WROC-T,WHEC-T,WOKR-T,J
• Citation: 441 N.Y.S.2d 220,109 Misc.2d 904
• Parties: , 7 Media L. Rep. 1987 Barbarra P. ANDERSON and Joy E. Brenon, Plaintiffs, v.ohn Thompson, Dick Scheltz, Frank Cafarell, Scott Harris, Lisa Rudolph, Frank Westover, Ziff Davis Broadcasting of New York, Beni Broadcasting of Rochester, Inc., the Post Corporation, Ronald Storm and the Humane Society of Rochester and Monroe County, Defendants.
• Court: New York Supreme Court

Page 220

441 N.Y.S.2d 220

109 Misc.2d 904, 7 Media L. Rep. 1987

Barbarra P. ANDERSON and Joy E. Brenon, Plaintiffs, v. WROC-TV, WHEC-TV, WOKR-TV, John Thompson, Dick Scheltz Frank Cafarell, Scott Harris, Lisa Rudolph, Frank Westover Ziff Davis Broadcasting of New York, Beni Broadcasting of Rochester, Inc., the Post Corporation, Ronald Storm and the Humane Society of Rochester and Monroe County, Defendants.

Supreme Court, Monroe County.

July 13, 1981.

Antell & Harris, Rochester (Peter A. Harris, Rochester, of counsel), for plaintiffs.

Woods, Oviatt, Gilman, Sturman & Clarke, Rochester (John A. Titus, Rochester, of counsel), for defendants WHEC-TV, John Thompson, Dick Scheltz and Beni Broadcasting of Rochester, Inc.

Chamberlain, D'Amanda, Bauman, Chatman & Oppenheimer, Rochester (Louis D'Amanda, Rochester, of counsel), for defendants WROC-TV, Fran Cafarell, Scott Harris and Ziff Davis Broadcasting of New York.

Lines, Wilkens, Osborn & Beck, Rochester (James A. Reed, Jr., Rochester, of counsel), for defendants WOKR-TV, Lisa Rudolph, Frank Westover and The Post Corporation.

Bayer & Smith, Rochester (Scott H. Smith, Rochester, of counsel), for defendants Ronald Storm and The Humane Society of Rochester and Monroe County.

DECISION

DAVID O. BOEHM, Justice.

In this case of apparent first impression in New York the plaintiffs are moving for summary judgment on the ground that certain affirmative defenses in the defendants' answers have no merit and should be stricken. Although the motion is brought under CPLR 3212, it appears that the application is actually one to dismiss defenses under CPLR 3211(b) and the motion is converted accordingly.

It appears that on the morning of September 9, 1980, defendant Ronald Storm, an investigator employed by defendant, The Humane Society of Rochester and Monroe County, in response to complaints about the plaintiffs, procured a search warrant authorizing him to enter plaintiffs' house and seize any animals "found to be in a confined, crowded or unhealthy condition or in unhealthy or unsanitary surroundings or ... not properly cared for or without sustenance, food and drink." Before executing the warrant, Storm contacted three television stations, defendants WROC-TV, WHEC-TV and WOKR-TV, informed them of the impending search and invited them to send newscasters and photographers to accompany him inside the premises. When he appeared at the plaintiffs' house at 89 Arch Street in Rochester, he was met by several television photographers and reporters who accompanied him into the plaintiffs' home. There they filmed the interior and the story was broadcast on the evening news shows of WROC-TV and WOKR-TV.

The complaint and plaintiffs' bill of particulars allege that plaintiff, Joy E. Brenon, asked the television people to stay out of her house but they entered notwithstanding her instructions.

Thereafter plaintiffs commenced this action. Damages are sought against defendants Ronald Storm and The Humane Society of Rochester and Monroe County, claiming that they abused the search warrant and against the three television stations and their named individual employees for trespass. ¹

The answers of the television stations and their employees have raised a number of affirmative defenses which are the subject of the present motion.

The defenses moved against are those set forth in paragraph "SECOND" of the answer of WOKR-TV which claims as a defense that as television reporters and photographers, they have an absolute privilege; paragraphs "FIRST", "SECOND" and "THIRD" of the answer of WROC-TV which respectively allege that the public's right to access to information of public interest made their conduct reasonable, that the entry was constitutionally protected, and that based upon custom and usage and the social necessity of the need to assure access to information in matters of public interest, defendants had the implied consent of the plaintiffs; and lastly, paragraphs "SECOND" and "FOURTH" of the answer of WHEC-TV, which allege respectively that plaintiffs' premises were open to the public or, through custom and usage were established as public areas and, therefore, its conduct was nontrespassory and privileged, and that the entry was nontrespassory and privileged because it was made to observe and record a genuinely newsworthy event which made the plaintiff's premises open to the public by custom and practice.

In opposing plaintiffs' motion, defendants rely very heavily upon the Florida case of Florida Pub. Co. v. Fletcher, Fla., 340 So.2d 914, cert. den. 431 U.S. 930, 97 S.Ct. 2634, 53 L.Ed.2d 245. That case turns on the principle that consent, whether express or implied, is a defense to an action for trespass and that consent may be implied from custom, usage or conduct. We agree with the law as stated by the court, but not with the conclusion it draws therefrom, at least with respect to the issue before it.

In that case fire damaged the home of the respondent while she was away visiting a friend and her 17-year-old daughter died. The fire marshall and police sergeant entered the house to make an official investigation and invited the news media to accompany them, which was done through an open door and without objection. Mrs. Fletcher first learned of her daughter's death by reading a newspaper story and viewing a photograph of her dead daughter's silhouette left on the floor after her body was removed. She brought an action against the newspaper publisher for trespass and invasion of privacy and intentional infliction of emotional distress. The Florida Supreme Court held that Mrs. Fletcher could not recover under trespass, finding an implied consent which authorized the newspaper photographer's entry into the home by virtue of "a longstanding custom and practice throughout the country for representatives of the news media to enter upon private property where disaster of great public interest has occurred ... and at the invitation of the officers who are investigating the calamity." (340 So.2d at 918).

It was on the basis of affidavits of news editors throughout Florida and the nation and affidavits of Florida law enforcement officials that the Florida Supreme Court found it to be the custom and practice which authorized the entry in that case. I respectfully disagree. The gathering of news and the means by which it is obtained does not authorize, whether under the First Amendment or otherwise, the right to enter into a private home by an implied invitation arising out of a self-created custom and practice. This is a bootstrap argument which does not eliminate the trespassory conduct of the defendants in this case.

It is hornbook law that consent as a defense to an action in trespass must be given by the owner or possessor of the premises (61 N.Y.Jur., Trespass, § 31). Although consent may be implied from custom, usage or conduct, it may not be extended by inference to justify the unlicensed entry of others (75 Am.Jur.2d Trespass, § 41). Although otherwise trespassory conduct may be legalized or justified by lawful authority, such as an officer of the law acting in the performance of his duty (Ibid. at § 43), such authority does not extend by invitation, absent an emergency, to every and any other member of the public, including members of the news media.

An analogy may be drawn from an early Michigan case in which a doctor attending a pregnant woman did not inform either the woman or her husband that the young man accompanying and assisting him was not a doctor. The court in permitting recovery held that although she consented to the presence of the doctor as well as to the young man, supposing him to be a physician, this did not preclude her from bringing an action for invasion of privacy and recovering damages. In short, her permission to her doctor did not extend to anyone else (DeMay v. Roberts, 46 Mich. 160, 9 N.W. 146; see also, Prahl v. Brosamle, 98 Wis.2d 130, 295 N.W.2d 768).

What must be remembered is that news people do not stand in any favored position with respect to newsgathering activity. The U. S. Supreme Court has repeatedly held that the First Amendment right to speak and publish does not carry with it the unrestrained right to gather information. News people have no special First Amendment immunity or special privilege to invade the rights and liberties of others (see, Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626; Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495; Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553; Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179; Lewis, A Preferred Position for Journalism?, 7 Hofstra Law.Rev. 595; Note: The Rights of the Public and the Press to Gather Information, 87 Harvard Law.Rev. 1505; 28 A.L.R.Fed., Liability of Newsman for Tort, 904).

As observed by the Second Circuit in Galella v. Onassis, 487 F.2d 986, 995-996:

"Crimes and torts committed in news gathering are not protected There is no threat to a free press in requiring its agents to act within the law." (see also, Le Mistral, Inc. v. CBS, 61 A.D.2d 491, 402 N.Y.S.2d 815, app.dism. 46 N.Y.2d 940).

Thus, lawful restrictions may be imposed upon the free exercise of other First Amendment rights where the exercise of such rights is sought by unauthorized entry onto private property (see, Watchtower Bible & T. Soc. v. Metropolitan Life Ins. Co., 297 N.Y. 339, 79 N.E.2d 433, cert. den. 335 U.S. 886, 69 S.Ct. 232, 93 L.Ed. 425, reh. den. 335 U.S. 912, 69 S.Ct. 479, 93 L.Ed. 445, distribution of religious literature; Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149, civil rights demonstration). As the U. S. Supreme Court has pointed out: "property is not ordinarily open to the public, this Court has held that access to it for the purpose of exercising First Amendment rights may be denied altogether." (Food Employees v. Logan Plaza, 391 U.S. 308, 320, 88 S.Ct. 1601, 1609, 20 L.Ed.2d...