meganproser said:
BA, I apologize for agreeing with you and thereby causing you to suffer “guilt by association”. I will never agree with you again as you are obviously capable of making your own points and my chiming in only detracts from your credibility.
>>The Fourth Amendment assures every US Citizen a reasonable expectation of privacy. It's a constitutional right, actions that constitute a violation of that right are WELL ESTABLISHED in law, and based upon the OP's given information, she has a viable claim.
Thank you BA, for reminding me that the US Constitution does not protect people from people. I wish I could say I’ll remember that, but I seem to have some kind of block on this particular bit of info. At least it should be obvious to BB that I am NOT in Law School, lol, as I’m sure a law student would not have a problem remembering such a fundamental fact.
BB, I found your information on Oregon torts VERY interesting. I guess we are looking at the OP’s situation from two very different views. You are clearly concerned with the amount of money she would get if she sued him, where I am concerned only with whether or not she might have a valid claim, and I believe she does.
>> Now, since you enjoy taking shots at me without understanding the real life application for what you are studying but "at times" seem to want to learn, I suggest you read the Oregon Revised Statutes Chapter 30 — Actions and Suits in Particular Cases
I do not enjoy taking shots at you, I just think sometimes you tell people they have no claim, when what you really mean is that in your opinion it is not worth pursuing a claim. I understand that you are trained to quickly assess the monetary value of a claim, but for some individuals, it’s not about the money.
>>And then you tell me under what statute this poster would be able to state a claim for damages and, if she does, what standard of proof will be required of her to prevail and then how she is going to prove measurable damages for which recovery is allow under Oregon Statute?
As BA said, it’s a common law claim. I DO think the OP will have a problem proving that the photo was shown to anyone. Her recent post indicates she’s taking the Ex’s word for the fact that he showed it to others. He may be lying and even if he did show it to his friends, the OP has no reason to believe the friends will testify that they saw it. Damages in most “privacy” cases, have to do with mental anguish, humiliation, etc.
BTW, I don’t know if Oregon has a claim for Intentional Infliction of Emotional Distress, but the way this guy is deliberately jerking her around about these photos, she might have a claim under that tort.
I think we all know that filing a lawsuit against this guy is not the best approach to her problem. It should be her last resort because she would likely lose money in pursuing it.
Oh, one last thing BB:
>>Also, you fail in a VERY IMPORTANT point. He doesn't have to prove consent. She is bringing the charges, the burden of proof that consent was not given is upon her.
It’s not as simple as that. They would each have the burden of trying to prove their version of events. She can’t prove a negative. Besides, I still maintain that even if she consented to the photo, he has no right to go around sharing it without her permission, especially after she has repeatedly voiced her objections to such.
Megan: I appreciate you not messing with my credibility.
BTW, I don’t know if Oregon has a claim for Intentional Infliction of Emotional Distress, but the way this guy is deliberately jerking her around about these photos, she might have a claim under that tort.
First, let me say that I believe Belize's approach is a sound one, to not only evaluate cases on whether all the elements are met, but also whether or not the net outcome is worth it. The only point I would make, and have been making, is that sometimes, such as here, even though the damages might not be profitable, pursuing injunctive relief and just getting the guy to stop the behavior thats obviously wrong might be "worth it" for the OP to expend the money to pursue a claim.
Second, Megan, let me give you a lesson on evaluating claims, and this is true of statutory violations, constitutional violations, common law claims, and the like. This goes back to, well, back to the first day of law school. And the other non-lawyers out there that are hell-bent on giving advice around here can/should do the same. You need to look at the elements of the claim. You need to see whether the elements are read in the conjunctive (AND, thus all need to be met) or disjunctive (OR, meaning any one can be met). Whether any element is met, is, of course, also open to interpretation, and lawyers argue about those very points all day long (in fact, Belize and I argued here about the points).
Lets talk about Intentional Infliction of Emotional Distress, shall we?
(1) that the actor either intended to cause emotional distress or knew or should have known that the actions taken would result in serious emotional distress to the plaintiff; (2) that the actor's conduct was so extreme and outrageous as to go beyond all possible bounds of decency and was such that it could be considered as utterly intolerable in a civilized community; (3) that the actor's actions were the proximate cause of plaintiff's psychological injury; and (4) that the mental anguish suffered by the plaintiff was serious and of a nature that no reasonable man could be expected to endure it.
So, this is a conjunctive test, all elements need to be met. You are shaky on a number of elements, but, assuming you can show he intended to cause her emotional distress (the first), and that his actions were the cause of her distress (the third), you still fall short on the second and fourth.
Hows that you ask? Because it truly has to be outrageous, and showing someone's naked pictures, while potentially embarassing, isn't going to result in a debilitating psychological injury that rises to the degree to sustain an IIED claim. If you've had any experience looking at the kinds of cases that sustain an IIED claim, you've generally got people seeking serious mental treatment as a result of the plaintiff's conduct. Perhaps you can point to where the poster indicated she was treating with a psychologist, or where she indicated what mental stresses and conditions she was suffering as a result?
I've had the opportunity to litigate one of these. In the case I handled (defended) a 80 year old plaintiff who was basically the victim of a real estate developers' protracted plan to get him to sell his property, by means of repeated telephone calls, annoying visits, etc. The final visit, the developer had the plaintiff so upset that he suffered a heart attack. That was held not to be IIED, and we obtained summary judgment for my dirt-ball client, the developer. That holding was upheld on appeal.
