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Desnick v. American
Broadcasting Companies, Inc.
44 F.3d 1345 (7th
Cir. 1995)
Author: Jim
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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