181 Cal.App.4th 856, 874, 104 Cal.Rptr.3d 352, 366 (2010)
On October 31, 2006, Nicole Catsouras was decapitated in an automobile accident at the age of 18.1 CHP officers arrived at the scene, cordoned off the area where the accident occurred, took control of the decedent's remains, and took multiple photographs of her decapitated corpse.2 The photographs were downloaded or otherwise transmitted to one or more CHP computers.3
O'Donnell and Reich, without the consent of the decedent's family, e-mailed or otherwise transmitted nine graphic and horrific photographs of the decedent to members of the public who were not involved in the official investigation.4 The officers sent the images to their friends and family members on Halloween for shock value.5 More than 2,500 Internet websites in the United States and the United Kingdom subsequently posted the photographs.6
The decedent's family members, consisting of her parents Christos and Lesli Catsouras and her sisters Danielle, Christina, and Kira Catsouras, received malicious taunting that included the photographs.7 Christos Catsouras received e-mails containing the photographs, including one entitled "Woo Hoo Daddy" that said "Hey Daddy I'm still alive."8 Some websites painted the decedent's life in a false light.9
The family filed a second amended complaint against the CHP, O'Donnell, and Reich asserting eight causes of action, including violation of section 1983, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, invasion of privacy, and vicarious liability of a public entity.10 In opposition to a demurrer, the family alleged that the CHP's traffic collision report contained 50 photographs and that the CHP had admitted the unauthorized release violated CHP policy.11
The trial court sustained demurrers without leave to amend as to O'Donnell and Reich on all claims against them.12 The court later granted the CHP's motion for judgment on the pleadings on the remaining vicarious liability claim.13 The family appealed the judgments, and the appeals were consolidated.14
Whether surviving family members possess a common law privacy right in death images of a decedent?15
The elements of a claim of invasion of privacy based on the public disclosure of private facts are as follows. Public disclosure of a private fact is required. The fact must be one which would be offensive and objectionable to the reasonable person. The fact must not be of legitimate public concern.16 Family members have a common law privacy right in the death images of a decedent. The dissemination of death images can only affect the living.17
Yes. The officers e-mailed graphic and horrific photographs of the decedent's decapitated remains to members of the public unrelated to the investigation for shock value on Halloween.18 Those photographs spread to more than 2,500 websites and were used to taunt the family members with messages such as the e-mail to Christos Catsouras entitled "Woo Hoo Daddy."19 The conduct involved pure morbidity and sensationalism without legitimate public interest or law enforcement purpose.20
The family members held an objectively reasonable expectation that the photographs would remain nonpublic under California law protecting such images.21
The trial court erred in sustaining the demurrers of O'Donnell and Reich as to the invasion of privacy cause of action.22
Related opinions on this issue
Justice Aronson concurred in the result but arrived at the conclusion through a slightly different analysis.23 He would expressly limit any familial right of privacy in death images to photographs taken during an autopsy or for the coroner at a cordoned-off accident scene that serve no newsworthy public interest.24 Under that limitation the claim fits within California privacy law because Code of Civil Procedure section 129 prohibits copying of such photographs except for specified official purposes.25
The officers' transmission to acquaintances for shock value satisfied both the intrusion and public disclosure of private facts torts.26 He emphasized that the survivors' interest in dignified treatment of the body they must inter supports their own personal privacy claims rather than derivative claims through the decedent.27
Whether CHP officers owed a duty of care to the decedent's family members not to disseminate graphic death scene photographs?28
The existence of a duty of care is determined by applying the Rowland factors. The factors include foreseeability of harm to the plaintiff. They also include the degree of certainty that the plaintiff suffered injury. Additional factors are the closeness of the connection between the defendant's conduct and the injury suffered. The moral blame attached to the defendant's conduct is considered. The policy of preventing future harm is relevant. The extent of the burden to the defendant and consequences to the community of imposing a duty are weighed. The availability of insurance is also considered. When public agencies are involved additional elements include the extent of the agency's powers. The role imposed upon it by law is considered. Budgetary limitations are taken into account.29
Yes. It was perfectly foreseeable that public dissemination via the Internet of photographs of the decapitated remains of an 18-year-old girl would cause devastating trauma to her parents and siblings.30 The alleged acts were morally deficient. The CHP is relied upon to protect and serve the public.31
It is antithetical to that expectation for officers to inflict harm by making ravaged remains the subject of Internet sensationalism.32 The policy of preventing future harm supports imposing a duty to encourage the CHP to establish and enforce policies precluding such acts.33 The burden on the CHP is not intolerable because the duty is narrowly framed to prohibit exploitation of gruesome death images for ghoulish thrill purposes rather than any broad interference with investigations.34
The CHP and its officers owed plaintiffs a duty of care not to place decedent's death images on the Internet for the purposes of vulgar spectacle.35
Whether the family members stated a cause of action for intentional infliction of emotional distress against the officers?36
The elements of the tort of intentional infliction of emotional distress are as follows. There must be extreme and outrageous conduct by the defendant. The defendant must act with the intention of causing emotional distress or with reckless disregard of the probability of causing emotional distress. The plaintiff must suffer severe or extreme emotional distress. There must be actual and proximate causation of the emotional distress by the defendant's outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.37
Yes. In their second amended complaint the plaintiffs alleged both that O'Donnell and Reich had acted with the intent to cause them emotional distress and that they had acted with reckless disregard of the probability of causing them emotional distress.38 The allegation of intent is sufficient to withstand a demurrer even though the plaintiffs were not present when the e-mails were sent.39 The conduct of sending graphic death images for shock value on Halloween qualifies as extreme and outrageous.40
The trial court erred in sustaining the demurrers as to the cause of action for intentional infliction of emotional distress.41
Whether the family members stated a cause of action for negligence against the officers?42
A plaintiff must show that the defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury. The existence of a duty of care is a question of law determined by applying the Rowland factors.43
Yes. Applying the Rowland factors the CHP and its officers owed plaintiffs a duty of care not to place decedent's death images on the Internet for the purposes of vulgar spectacle.44 The foreseeability of harm, moral blame, and policy of preventing future harm weigh heavily in favor of recognizing the duty.45 The special relationship doctrine does not preclude it because the officers' affirmative act of dissemination placed the family at foreseeable risk of grave emotional distress.46
Plaintiffs stated a viable cause of action for negligence supporting emotional distress damages.47
Whether the CHP is vicariously liable for the officers' conduct under Government Code section 815.2?48
A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee.49
Yes. Because plaintiffs stated viable causes of action against O'Donnell and Reich for invasion of privacy, intentional infliction of emotional distress, and negligence, the CHP may be vicariously liable under Government Code section 815.2 subdivision (a) for those acts committed within the scope of employment.50
The trial court erred in granting judgment on the pleadings in favor of the CHP on the vicarious liability claim.51
Whether the family members stated a viable section 1983 claim against the CHP?52
Under the Eleventh Amendment to the United States Constitution and the doctrine of sovereign immunity the state is absolutely immune from tort liability under section 1983. States and state officers sued in their official capacity are not considered persons for purposes of section 1983.53
No. The CHP is an instrumentality of the state and is absolutely immune from liability under section 1983 by virtue of the Eleventh Amendment and the doctrine of sovereign immunity.54 The trial court correctly sustained the demurrer on those grounds.55 The CHP functions as a state agency and therefore receives the full protection of sovereign immunity in federal civil rights actions.56
The family members did not state a viable section 1983 claim against the CHP.57
Whether the family members stated a viable section 1983 claim against the individual officers?58
A rule of qualified immunity shields a public officer from an action for damages under section 1983 unless the officer has violated a clearly established constitutional right. The inquiry is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.59
No. Plaintiffs did not plead facts sufficient to allege that the actions of O'Donnell and Reich violated any clearly established constitutional right.60 Although National Archives recognized a common law privacy right in death images, Melton addressed the issue in a section 1983 context. Those authorities did not put the officers on notice that e-mailing the photographs would clearly violate a federal right at the time of the conduct.61 The doctrine of qualified immunity shields them from liability under section 1983.62
The family members did not state a viable section 1983 claim against the individual officers.63