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DESNICK v. CAPITAL CITIES/ABC

March 29, 1994

J.H. DESNICK, M.D., EYE SERVICES, LTD., A Professional Corporation; MARK A. GLAZER, M.D., and GEORGE V. SIMON, M.D., Plaintiffs,
v.
CAPITAL CITIES/ABC, INC.; ABC NEWS PRIME TIME; JOHN ENTINE; and SAM DONALDSON, Defendants.



The opinion of the court was delivered by: JOHN A. NORDBERG

 Before the Court is Defendants' Motion to Dismiss the Plaintiffs' Complaint.

 ALLEGED FACTS

 This case arises out of the preparation and broadcast of a television segment concerning cataract surgery for a program entitled PrimeTime Live which is produced by the Defendants. On March 22, 1993, John Entine, producer of PrimeTime Live, contacted Plaintiff Dr. James Desnick about an interview concerning a segment regarding cataract surgery. Dr. James Desnick owns Eye Services, Ltd., also known as the Desnick Eye Center, which provides ophthalmologic medical and surgical services.

 According to Plaintiffs' Complaint, when Entine and Desnick spoke, Entine assured Desnick that the segment would focus on ophthalmological practices which market their services to senior citizens and would not involve "surveillance 'ambush' journalism techniques or 'undercover' techniques." (Complaint at PP 20-21.) Based on this alleged agreement between Entine and Desnick, Desnick allowed Entine to interview medical staff personnel and film live cataract surgery at the Desnick Eye Center in Chicago. Id. at P 25. Desnick also gave Entine an informational videotape used by the Eye Center for patient information. Id.

 Shortly after Entine's visit to the Eye Center, Desnick learned that the Defendants had hired "undercover" patients to visit two of the Desnick Eye Center's branch offices located in Kenosha, Wisconsin and Munster, Indiana. Id. at P 27. These "undercover" patients were accompanied by another person posing as a friend or relative who carried concealed videotaping and audio recording equipment. Id. at P 33.

 Furthermore, prior to the broadcast on June 10, 1993, Plaintiffs learned that Defendants were allegedly relying upon information provided by a former employee of the Desnick Eye Center, Paddy Kalish. Id. at P 36. Plaintiffs informed Defendants that Kalish was biased and had previously disseminated false information about the Desnick Eye Center. Id. at P 37. Kalish appeared in the June 10, 1993 broadcast and stated that he watched a technician tamper with the auto-refractor machines at the Desnick Eye Center. *fn1" Id. at P 38. Kalish also stated that the Defendants routinely tampered with auto-refractors when older patients came in for eye exams so that it would appear that they had cataracts. Id. Plaintiffs allege that the Defendants, with reckless disregard for the truth and with actual malice, broadcast Kalish's defamatory statements that Plaintiffs tampered with their auto-refractors. Id. at P 43.

 Based on the alleged facts recounted above, Plaintiffs bring a seven count Complaint alleging trespass (Count I), invasion of privacy (Count II), wiretapping in violation of 18 U.S.C. § 2511 and Wisconsin Statute 968.31 (Counts III and IV), fraud (Count V), breach of contract (Count VI) and defamation (Count VII).

 ANALYSIS

 When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must view the complaint in the light most favorable to the plaintiff and the complaint's allegations must be accepted as true. Richardson v. Shearson/American Express Co., Inc., 573 F. Supp. 133, 134 (N.D. Ill. 1983) citing C. Wright & A. Miller, Federal Practice & Procedure § 1357 at 594 (1969). Thus, the complaint cannot be dismissed "unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts . . . which would entitle [him] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957).

 Count I - Trespass

 In Count I, Plaintiffs seek to recover damages for Entine's visit to Desnick Eye Center's Chicago Office and for at least seven "undercover" patients' visits to Desnick Eye Center's Wisconsin and Indiana offices. Defendants assert that Plaintiffs cannot state a claim for trespass because Plaintiffs consented to the entries of Entine and the "undercover" patients.

 A trespass is an entry into another's land without permission, invitation or other right. Chicago Title & Trust Co. v. Weiss, 238 Ill. App. 3d 921, 605 N.E.2d 1092, 1097, 179 Ill. Dec. 78 (2nd Dist. 1992); Prahl v. Brosamle, 98 Wis. 2d 130, 295 N.W.2d 768, 773 (1980); Cullison v. Medley, 570 N.E.2d 27, 29 (Ind. 1991). While Plaintiffs do not deny that they consented to the entries of Entine and the "undercover" patients, they argue that they would not have consented if Entine and the patients "had revealed their true purpose." (Complaint P 49.) Plaintiffs assert that consent is not a valid defense to an action for trespass if the consent was fraudulently induced.

 In support of their assertion, Plaintiffs cite Prahl v. Brosamle, 98 Wis. 2d 130, 295 N.W.2d 768 (1980). In Prahl, the court held that the plaintiff could bring an action for trespass against a television reporter where the reporter entered the plaintiff's land to film police officers confiscating plaintiff's guns and interviewing plaintiff. Id. at 773. Instrumental to the Prahl court's holding was the reporter's failure to request or receive the plaintiff's permission to enter the premises. Id. at 778-779. Thus, the facts of Prahl are distinguishable from the facts of the present case where Plaintiffs do not deny that they consented to the entries of Entine and the "undercover" patients. Le Mistral, Inc. v. Columbia Broadcasting System, 61 A.D.2d 491, 493, 402 N.Y.S.2d 815 (1978), can be similarly distinguished.

 Although Belluomo v. Kake T.V. & Radio, 3 Kan. App. 2d 461, 474, 596 P.2d 832 (1979) supports Plaintiff's argument that, "if the purported consent was fraudulently induced, there was no consent," this Court finds the rationale of Baugh v. CBS, Inc., 828 F. Supp. 745 (N.D. Cal. 1993) more persuasive. In Baugh, the plaintiff admitted that she consented to the entry of the camera crew into her home and to their videotaping. Id. at 756. However, she argued that her consent was invalid because it was induced by the defendants' misrepresentations. Id. The Baugh court held that where actual consent is given, even if it is fraudulently induced, there can be no trespass. Id. at 757. See also, Miller v. NBC, 187 Cal. App. 3d 1463, 1480, 232 Cal. Rptr. 668 (1987) (holding that where there is a consensual entry, there is no tort because lack of consent is an element of the theory underlying tort). While the Plaintiffs in the instant case may have a remedy based on fraud or misrepresentation, they cannot bring an action for trespass. Accordingly, Count I of the Complaint is dismissed for failure to state a claim on which relief can be granted.

 Count II

 In Count II of their Complaint, Plaintiffs assert that the Defendants and their agents "intruded into the private spaces of the Desnick Eye Center in a highly offensive nature." (Complaint P 54.) The Plaintiffs state further that the facilities, especially the examination rooms of the Desnick Eye Center, are places that the Plaintiffs and any reasonable person would consider private. (Complaint at P 53.) Finally, the Plaintiffs allege that the Defendants' intrusive invasion of privacy violated the doctor-patient relationship and jeopardized the Plaintiffs ability to communicate openly with their patients. (Complaint at P 55.)

 Initially, this Court notes that Plaintiff Eye Services Ltd., a corporation, cannot bring an action for invasion of privacy. The right to privacy is a personal right which courts have not extended to protect corporations. CNA Financial Corp. v. Local 743 of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 515 F. Supp. 942, 946 (N.D. Ill. 1981) (stating "many courts that have considered the question have concluded that a corporation cannot maintain an action for invasion of the right to privacy and we believe that this represents the better reasoned approach.") Plaintiffs argue that Eye Services is not an ordinary corporation but rather a professional corporation, and thus Eye Services should be treated like a partnership for privacy purposes. However, Plaintiffs provide no support for their assertion other than the citation of H & M Associates v. City of El Centro, 109 Cal. App. 3d 399, 167 Cal. Rptr. 392, 399 (4th Dist. 1980) which held that a limited partnership could bring a claim for invasion of privacy. Thus, this Court concludes that Eye Services cannot maintain an action for invasion of the right to privacy.

 Unlike corporate Plaintiff Eye Service, this Court cannot dismiss the individual Plaintiffs', Dr. Mark Glazer and Dr. George Simon, action for invasion of privacy so readily. The Restatement (Second) of Torts describes the tort of intrusion upon seclusion in the following manner:

 
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 ...

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