Bazemore v. Savannah Hospital
155 S.E. 194, 1930 Ga. LEXIS 329, 171 Ga. 257 (1930)
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Rule of Law:
Parents have an independent cause of action for the violation of their own right of privacy when a photograph of their deceased child is published without their consent, causing them injury.
Facts:
- The plaintiffs were the parents of an infant child born with a malformation.
- The child was placed in the Savannah Hospital for treatment.
- The infant child died while at the hospital.
- After the child's death, a photographer took a picture of the deceased child without the parents' consent.
- The photograph of the deceased, malformed child was subsequently published and circulated.
- The parents alleged the publication caused them chagrin, humiliation, shock, and sickness requiring medical treatment.
Procedural Posture:
- The parents (plaintiffs) filed a petition for damages and an injunction against Savannah Hospital, a photographer, and a newspaper (defendants) in the trial court.
- The defendants filed a general demurrer, arguing that the petition failed to state a cause of action.
- The trial court sustained the defendants' general demurrer and dismissed the case.
- The parents (appellants) appealed the dismissal to the Supreme Court of Georgia.
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Issue:
Does a petition by parents, alleging the unauthorized publication of a photograph of their deceased child, state a valid cause of action for a violation of the parents' own right of privacy?
Opinions:
Majority - Majority Opinion
Yes. A petition by parents for the unauthorized publication of their deceased child's photograph states a valid cause of action for the violation of their own right of privacy. The suit is not based on an injury to the deceased child, as the tortious acts occurred after the child's death. Therefore, the right of action is not a survival action but a new and independent right belonging to the parents. The court analogized this injury to the emotional damages recoverable by relatives for the wrongful disinterment of a dead body, as established in Jacobus v. Congregation, arguing that if damages are available for disturbing 'bleaching bones,' they should be available for the unauthorized publication of a deceased's protected portrait. The court distinguished prior dicta from Pavesich, which suggested a parent could not sue over their living child's photo, on the grounds that it was non-binding and, more importantly, inapplicable because the child in this case is deceased and cannot possess the cause of action.
Dissenting - Hill, J.
No. The parents do not have a valid cause of action because the right of privacy is a personal right that belonged to the child, not the parents. Citing Pavesich's approval of the Murray case, the dissent argues that any cause of action for the violation of privacy lies with the individual whose likeness is used, and a parent cannot sue for a wrong committed against their child's person. A parent's right of action for torts against a child is limited to loss of services and expenses, which are absent here. The dissent maintains that the law does not remedy 'sentimental injury' or wounded feelings disconnected from a property or contract right, and if such a remedy is to be created, it should be done by the legislature, not the judiciary.
Analysis:
This case significantly expands the tort of invasion of privacy by establishing a relational right of privacy. Prior to this decision, the right was considered strictly personal, meaning only the individual whose privacy was invaded could sue. By allowing parents to recover for the unauthorized publication of their deceased child's image, the court recognized that an individual's privacy interest can extend to their immediate family, especially after death. This creates a new precedent allowing surviving family members to protect the memory and likeness of the deceased from unauthorized exploitation, thereby providing a remedy for the distinct emotional and psychological harm they suffer.
