There is an extremely interesting case developing in California over the release of graphic photos ofNicole “Nikki” Catsouras, 18, who was decapitated in a two-car crash on a toll road near Lake Forest, California. 

Nikki took her father’s Porsche without permission and was driving more than 100 mph owhen she clipped another car and then lost control —  ultimately slamming into a toll booth. The parents are using the California Highway Patrol for<the graphic picture of the decapitated girl on MySpace sites and Internet sites.  These photos were taken the the police at the scene and later released publicly.  They are claiming negligence, intentional infliction of emotional distress and libel. The photos are now on thousands of websites.  

While the CHP has apologized, it has sought to have the lawsuit dismissed. CHP policy actually forbids such photographs from being publicly disseminated or used for non-law enforcement purposes.

 The case presents a fascinating claim that a public scene should have been kept private.  Anyone who was in the area could have legitimately photographed the scene and presumably could not be sued.  Yet, the police closed off the scene for the purposes of the photographs, which are detailed and graphic.  Their use of their authority to take the pictures and then release them is the heart of this novel action.  For negligent infliction of emotional distress in California, the plaintiffs must normally show: In California, “[a] cause of action for negligent infliction of emotional distress requires that a plaintiff show “(1) serious emotional distress, (2) actually and caused by (3) [the] wrongful conduct (4) [of] a defendant who should have foreseen that the conduct would cause such distress.'” However, in a bystander case, the standard is more stringent as a general rule. The plaintiff in such cases must be (1) closely related to the injury victim; (2) present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress. 

The case raises some of the issues from past reality program lawsuit. Police have been sued for bringing along camera crews on high-speed chases and home entry on the theory that, if they can witness a scene, the public can see the same scene.   In Wilson v. Layne, a unanimous Court held that it is unconstitutional under the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant as witnesses — as on Top Cop shows.  This litigation will explore the civil liability of exposing individuals to public view. 

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