Erin Andrews and Insult
posted by Kyle Graham
Some of you may have seen that ESPN reporter Erin Andrews recently re-filed her civil lawsuit against a Nashville, Tennessee hotel for negligence and invasion of privacy. This lawsuit follows upon the surreptitious videotaping of Andrews by one Michael Barrett, named as a co-defendant in the case. Barrett has since been convicted of stalking, and has been sentenced to more than two years in prison.
In her complaint, Andrews alleges that the hotel acted negligently in at least three respects: it informed Barrett which room she was occupying, it allowed him to rent an adjoining room, and then it failed to discover that Barrett had altered the peephole of her door so as to allow his videotaping.
Do these facts, if shown, state a case for the jury? Probably. The closest case on point I could find (and I’ll admit, I didn’t look all that hard) is Carter v. Innisfree Hotel, Inc., a 1995 decision by the Alabama Supreme Court. Addressing a lawsuit brought against a motel by two former guests, the Carter court found that triable issues of fact existed under both invasion of privacy and negligence theories after the plaintiff couple (1) reported that they heard suspicious noises emanating from a wall, (2) had sex, and then (3) later discovered, behind a mirror on the wall, a hole that could have been used to spy on them while they were fooling around.
Perhaps more interesting (at least to me; hey, I’m a law professor), in addressing the plaintiffs’ negligence cause of action, the Carter court relied heavily on old decisions that involved claims sounding in the archaic, now-moribund tort of insult. Insult cases were somewhat common a century ago. They are almost unheard-of today, at least as a cause of action distinct from negligence or intentional infliction of emotional distress (more on that below).
Back around 1900 or so, a claim for insult might lie when a railroad conductor in the Deep South directed a Caucasian passenger to a passenger car reserved for African-Americans; when a streetcar employee allowed a female customer to be harangued by her fellow passengers; or when a hotel detective spied on guests. The common facts being (1) a common carrier or innkeeper defendant, and (2) conduct that, while offensive given the place and time, did not have to rise to the level of outrageousness that we associate today with a viable claim for intentional infliction of emotional distress.
As I discussed a while back, insult disappeared as a distinct cause of action in part because much of its conceptual space came to be absorbed by negligence and the “new” tort of intentional infliction of emotional distress; it was basically caught in a no-man’s-land between these two expanding theories of liability. (Plus, maybe we’re simply more used to rude treatment by common carriers these days.) The insult tort earned separate mention in the Restatement (Second) of Torts (at section 48, titled “Special Liability of Public Utility For Insults By Servants”), but just barely; today, it’s pretty much extinct as a distinct cause of action. Instead, facts that once might have given rise to a cause of action for insult are now analyzed under generic negligence or intentional infliction of emotional distress principles.
What does this mean for Erin Andrews, and her lawsuit? Not a whole lot, I suppose. At most, the existence of the cause of action and its echo in modern precedent underscore the heightened responsibilities of hotels and innkeepers, even under negligence doctrine. But given all of the other interesting aspects of her case, it would almost be too much for an archaic tort theory to also be in the mix.
December 7, 2011 at 10:30 pm
Posted in: Current Events, Privacy, Tort Law, Uncategorized
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Responses (2)
Lurker - December 8, 2011 at 4:10 am
While I agree with you on the substance, I’d like to protest against your use of “were fooling around”. Given your overall style, use of “copulated” would have been more appropriate.
Using word “to be fooling around” meaning “to have sex” shows that the writer thinks that such sex is undertaken lightly, without sober reflection. In addition, it implies that with proper refletion, the couple had not engaged in sexual actions at all or would have conducted their intimate behaviour in a more dignified manner.
In my view, the record, as presented, shows no reason for this presumption. Considering that sex is one of the greatest founding stones of a serious relationship and essential for the continuation of our species, such default approach demeans this noble activity. If two consenting adults are having sex, they should not be presumed to be “fooling around”, unless they are clearly drunk, high or otherwise in a state of lowered consciousness.
KB - December 8, 2011 at 8:18 am
Lurker, you seriously need to find a better way to spend your time then “fooling around”
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