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Desnick v. American Broadcasting Companies, Inc. Case Brief

Summary of Desnick v. American Broadcasting Companies, Inc., 44 F.3d 1345 (7th Cir. 1995)

Plaintiffs: Desnick Eye Center, an ophthalmic clinic, and 2 of its surgeons Glazer and Simon

Defendants: ABC television network, Producer of PrimeTime Live named Entine, and program’s star reporter named Donaldson.

Facts:  Entine called the plaintiffs and informed them that he was making program on cataract practices.  Entine asked if he can bring his video crew to plaintiff’s clinic and assured the plaintiffs that there will be no ‘ambush’ interviews or undercover surveillance and the whole process will be ‘fair and balanced.’  Plaintiff agreed.  But in fact defendants sent uncover patients to defendants other clinics and also interviewed the patients at the clinic.  The final program showed how plaintiffs were suggesting cataract surgeries to elderly people who were covered under medicare, even though many of these people didn’t even require these surgeries.

Procedure:  Plaintiffs brought suit for trespass, defamation, and other torts.  The lower court dismissed this complaint.

Issue: Did the tort of trespass take place under the given facts?

Holding: No

Law: “To enter upon another’s land without consent is trespass.”

Rationale: It is often held that consent to an entry is legal even though the entrant has intentions, that if revealed to the owner, make the owner revoke this consent.  For example, a food critic will not be liable for trespass if he enters a restaurant acting like a regular customer. On the other hand, a person who enters the house of another by claiming to be a meter man, where in fact he just wants to check the interior of the house, is guilty of trespass.  In the first incident, the restaurant wants to have customers, whereas in the second case, a homeowner does not want to have strangers entering the house.  Furthermore, in the tort of battery, law also gives effect to consent that is procured by fraud.  For example, a man who seduces a woman to have sex is not guilty of battery.  Whereas a man who makes a woman to have sex with him by telling her that it will somehow medically treat the woman (obviously a false claim) is liable.  In the first case, the woman wants to have sex, but in the second case, the woman does not.  Similarly in the current case, the defendants entered the clinic of the plaintiffs acting like patients.  The clinic was open to anyone who wanted to get the eyes checked.  The defendants did not reveal any personal information of the plaintiffs. They only revealed the professional conduct of the plaintiffs.  No work was disturbed, no embarrassingly intimate details were revealed, no trade secrets were stolen, etc.  Therefore, plaintiffs cannot have a claim under the law of trespass.



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