Catsouras

Nicole Catsouras (decedent) suffered a tragic end to her young life. At age 18, she was decapitated in an automobile accident. With her demise, the torment of her family members began. They endured not only her death, and the hideous manner of it, but also the unthinkable exploitation of the photographs of her decapitated remains. Those photographs were strewn about the Internet and spit back at the family members, accompanied by hateful messages.

In a second amended complaint against the Department of the California Highway Patrol (CHP) and two of its peace officers, Thomas O'Donnell (O'Donnell) and Aaron Reich (Reich), decedent's father, mother and sisters (plaintiffs) alleged that O'Donnell and Reich had e-mailed the horrific photographs of decedent's mutilated corpse to members of the public unrelated to the accident investigation. Plaintiffs alleged more specifically, in their opposition to a demurrer, that O'Donnell and Reich had e-mailed nine gruesome death images to their friends and family members on Halloween— for pure shock value. Once received, the photographs were forwarded to others, and thus spread across the Internet like a malignant firestorm, popping…

—Nicole Catsouras (decedent) suffered a tragic end to her young life. At age 18, she was decapitated in an automobile accident. With her demise, the torment of her family members began. They endured not only her death, and the hideous manner of it, but also the unthinkable exploitation of the photographs of her decapitated remains. Those photographs were strewn about the Internet and spit back at the family members, accompanied by hateful messages.

In a second amended complaint against the Department of the California Highway Patrol (CHP) and two of its peace officers, Thomas O’Donnell (O’Donnell) and Aaron Reich (Reich), decedent’s father, mother and sisters (plaintiffs) alleged that O’Donnell and Reich had e-mailed the horrific photographs of decedent’s mutilated corpse to members of the public unrelated to the accident investigation. Plaintiffs alleged more specifically, in their opposition to a demurrer, that O’Donnell and Reich had e-mailed nine gruesome death images to their friends and family members on Halloween— for pure shock value. Once received, the photographs were forwarded to others, and thus spread across the Internet like a malignant firestorm, popping…

I concur in all of the majority’s conclusions, including that plaintiffs have stated a claim for invasion of privacy against Department of the California Highway Patrol (CHP) Dispatcher Aaron Reich and Officer Thomas O’Donnell, for their allegedly unprivileged e-mail distribution of crash scene photographs of Nicole Catsouras’s decapitated body. I write separately because I arrive at this conclusion by a slightly different analysis. As I will explain, I 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, and which serve no newsworthy public interest. Circumscribed by these limitations, plaintiffs’ invasion of privacy claim fits squarely within the contours of California privacy law. Accordingly, I also concur with the majority that plaintiffs have stated a negligence cause of action. Although neither of the individual defendants nor the CHP undertook a duty of care with respect to plaintiffs, and none of the defendants had a special relationship with plaintiffs, California privacy law imposed duties on defendants to avoid intrusion into plaintiffs’ privacy right in the…