Florida Pub. Co. v. Fletcher

• Decision Date: 07 October 1976
• Docket Number: No. 48372,48372
• Citation: 340 So.2d 914
• Parties: 2 Media L. Rep. 1088 FLORIDA PUBLISHING COMPANY, a Florida Corporation, Petitioner (Defendant), v. Klenna Ann FLETCHER, etc., Respondent (Plaintiffs).
• Court: Florida Supreme Court

Page 914

340 So.2d 914

2 Media L. Rep. 1088

FLORIDA PUBLISHING COMPANY, a Florida Corporation, Petitioner (Defendant), v. Klenna Ann FLETCHER, etc., Respondent (Plaintiffs).

No. 48372.

Supreme Court of Florida.

Oct. 7, 1976.

Rehearing Denied Jan. 10, 1977.

Writ of Certiorari to the District Court of Appeal, First District.

Harold B. Wahl, of Wahl & Gabel, Jacksonville, for petitioner.

Ellis E. Neder, Jr., and Rudolph J. Inman, Jr., Jacksonville, for respondent.

George D. Gabel, Jr., of Wahl & Gabel, Jacksonville, and Richard N. Winfield and Betty B. Robbins, of Rogers & Wells, New York City, for Associated Press.

Charles S. Isler, Jr., and George P. Daniels, of Isler, Higby, Brown & Smoak, Panama City, for Florida, Freedom Newspapers, Inc.

William C. Ballard, of Baynard, Lang & Ballard, St. Petersburg, for Times Publishing Co.

Ted R. Manry, III, of MacFarlane, Ferguson, Alison & Kelly, Clearwater, for The Tribune Co.

J. Laurent Scharff, of Pierson, Ball & Dowd, Washington, D.C., and George D. Gabel, Jr., of Wahl & Gabel, Jacksonville, for Radio Television News Directors Association.

George D. Gabel, Jr., of Wahl & Gabel, Jacksonville, for The Greater Jacksonville Chapter of the Society of Professional Journalists/Sigma Delta Chi.

William G. Mateer, of Mateer, Harbert, Bechtel & Phalin, Orlando, and John W. Fleming and Rex Conrad, of Fleming, O'Bryan & Fleming, Fort Lauderdale, for Gore Newspapers Co. and Sentinel Star Co.

Dan Paul and Sanford L. Bohrer, of Paul & Thomson, Miami, for The Miami Herald Publishing Co., The New York Times Company and Gannett Company, Inc.

DuBose Ausley and C. Gary Williams, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for The Tallahassee Democrat and Florida Society of Newspaper Editors.

James D. Whisenand, Deputy Atty. Gen., and Sharyn L. Smith, Asst. Atty. Gen., for Robert L. Shevin, Atty. Gen., State of Florida, amici curiae.

ROBERTS, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, First District, in Fletcher v. Florida Publishing Co., reported at 319 So.2d 100 (Fla.App. 1, 1975), which directly conflicts with Jacova v. Southern Radio and Television Co., 83 So.2d 34 (Fla.1955), thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

The facts supported by the record are succinctly stated in the summary final judgment of the trial judge who determined that there was no real dispute as to the material facts. Respondent, Mrs. Fletcher, left Jacksonville for New York on September 15, 1972, to visit a friend. She left in Jacksonville her three young daughters, including seventeen-year-old Cindy. A 'baby sitter' was to spend the nights with the children, but there was no one with them in the home during the daytime except a young man who had a room in the house and whom Mrs. Fletcher described as Cindy's 'boy friend.' On the afternoon of September 15, 1972, while Cindy was alone in the house, a fire of undetermined origin did large damage to the home, and Cindy died.

The fire and police departments were called by a neighbor who discovered the fire, but too late to save the child. A large group of firemen, news media representatives, and onlookers gathered at the scene and on Mrs. Fletcher's property.

When the Fire Marshal and Police Sergeant Short entered the house to make their official investigation, they invited the news media to accompany them, as they deposed was their standard practice. The media representatives entered through the open door; there was no objection to their entry; they entered quietly and peaceably; they did no damage to the property; and their entry was for the purpose of their news coverage of this fire and death.

The Fire Marshal desired a clear picture of the 'silhouette' left on the floor after the removal of Cindy's body. He and Sergeant Short in their depositions explained that the picture was important for their respective investigations to show that the body was already on the floor Before the heat of the fire did any damage in the room. The Fire Marshal took one polaroid picture of the silhouette, but it was not too clear, he had no further film, and he requested photographer Cranford to take the 'silhouette' picture which was made a part of the official investigation file of both the Fire and Police.

This picture was not only a part of the investigation but News Photographer Cranford turned it and his other pictures over to the defendant newspaper. It and several other pictures appeared in the news story of The Florida Times-Union on September 16, 1972.

Respondent first learned of the facts surrounding the death of her daughter by reading the newspaper story and viewing the published photographs.

Respondent filed an amended complaint against petitioner alleging (1) trespass and invasion of privacy, (2) invasion of privacy, (3) wrong intentional infliction of emotional distress--seeking punitive damages.

The trial court dismissed Count II and Supreme Court recognized the rule that it as to Counts I and III. Relative to the granting of summary judgment for Petitioner as to Count I, the trial judge cogently explicated:

'As to Count I, the question raised by the motion for summary judgment is one of law as there is no genuine issue of material fact. The question raised is whether the trespass alleged in Count I of the complaint was consented to by the doctrine of common custom and usage.

'The law is well settled in Florida and elsewhere that there is no unlawful trespass when peaceable entry is made, without objection, under common custom and usage. See Prior v. White (1938) 132 Fla. 1, at 19, 180 So. 347; Boston v. Fornalski (Fla. DCA 4, 1970) 234 So.2d 386, 387; 52 Am.Jur., Trespass, Section 39; 87 C.J.S., Trespass, Section 49b; Conley on Torts (4th Edition) Sections 251 and 248; Harper and James on Torts, Section 1.11; Restatement of the Law of Torts, Section 167(d), Trespass, page 403.

'In Martin v. Struthers 1943) 319 U.S. 141, 149 (63 S.Ct. 862, 87 L.Ed. 1313), the Court struck down an unconstitutional and 'invalid in conflict with the freedom of speech and press' a city ordinance which made it unlawful trespass to knock on doors and ring doorbells to distribute literature. In so doing, at pages 147-149 (63 S.Ct. 862) it made the far reaching pronouncement followed by the Florida Supreme Court in Prior v. White (Fla.1938) 132 Fla. 1, 180 So. 347, 356:

"Traditionally the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off. * * * We know of no state which, as does the Struthers ordinance in effect, makes a person a criminal trespasser if he enters the property of another for an innocent purpose without an explicit command from the owners to stay away.'

'In McKee v. Gratz (1922) 262 (260) U.S. 127 (43 S.Ct. 16, 67 L.Ed. 167), the Supreme Court recognized the rule that it was not trespass when under the 'habits of the country' entry was commonly made.

'Not only did the Fire Marshal and Detective Sergeant Short testify it was common custom and usage to permit the news media to enter under the circumstances here, and of the great number of times they had permitted it in private homes, but many affidavits were filed to the same effect, including those of Duval County Sheriff Carson and Florida Attorney General Shevin.

'Similar affidavits have been filed from the Chicago Tribune; the ABC--TV News, New York; the Tallahassee Democrat; the Pensacola Journal; the Associated Press; the President of the American Newspaper Publishers Association; the President of the Radio Television News Directors Association; the Miami Herald; United Press International; The Florida Times-Union and Jacksonville Journal; The Washington Post; TV-12 at Jacksonville; TV-10 at Miami; TV-4 at Jacksonville; the New York Daily News; the Milwaukee Journal; the Birmingham Post-Herald; the Memphis Commercial Appeal; the Macon Telegraph; and the Tampa Tribune; all attesting that it is common usage, custom and practice for news media to enter private premises and homes under circumstances like those here.

'Plaintiff filed no affidavits except her own; she makes no attempt to qualify as an expert; and she simply states her personal belief generally, without going into the situation involving coverage of a news story of public interest. She shows no qualifications to make an affidavit on the custom and usage in such matters.

'In Mrs. Fletcher's deposition, she stated she was in New York at the time of the fire; there was no one at the scene who objected to the entry; and she makes it clear she does not contend there was any force used for entry, or any physical damage done to the premises.

'Plaintiff likewise concedes that it was perfectly proper for the Fire and Police to enter without permission. The Fire and Police used the picture as part of their official investigation and actually requested that such picture be taken and would have made such request even had the Plaintiff been there and objected. There is no evidence that any restriction was placed upon the Defendant's photographer in the use of the photographs he took at the request of the Police and Fire Marshal.

'Numerous affidavits, as above set forth, have been filed by the Defendant in support of its motion for summary judgments. All these affidavits attest to the fact that it is common usage, custom and practice for news media to enter private premises and homes to report on matters of public interest or a public event. The court therefore finds that there is no genuine issue of material fact and that as a matter of law an entry, that may otherwise be an actionable trespass, becomes lawful and non-actionable when it is done under common usage, custom and practice. The court further finds that the entry complained of in Count I of the Plaintiff's complaint was one permitted by common usage,...