# Appendix — Showler v. Harper's Magazine Foundation (No. 06-1703)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2007

## Text

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APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

No. 06-7001

[Filed March 23, 2007]

ROBERT SHOWLER AND
JOHNNY DAVIDSON,
individually and as special
administrator of the Estate of
Kyle Adam Brinlee,
Plaintiffs-Appellants,

HARPER’S MAGAZINE

FOUNDATION,

PETER TURNLEY,

individually and in his capacity

as a contributing editor to

Harper’s Magazine,
Defendants-Appellees.

DENVER POST
CORPORATION;

MAGAZINE PUBLISHERS
OF AMERICA;

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NEWSPAPER ASSOCIATION
OF AMERICA;

NEW YORK TIMES COMPANY;
OKLAHOMA PUBLISHING
COMPANY;

OF AMERICA;

REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS;

TRIBUNE COMPANY,

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PICTURE ARCHIVE COUNCIL _)
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Amici Curiae. )
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(D.C. No. 05-CV-178-S)
(E. D. Okia.).

ORDER AND JUDGMENT *

Before KELLY, BRISCOE, Circuit Judges and ROBINSON,
District Judge.”

* This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10” Cir. R. 32.1.

“ Honorable Julie A. Robinson, U.S. District Judge, District of
Kansas, sitting by designation.

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Plaintiffs-Appellants Robert Showler and Johnny Davidson
filed this suit against Defendants-Appellees Harper’s
Magazine Foundation (“Harper’s”) and Peter Turnley,
alleging they committed various torts when Mr. Turnley took
photographs of Sergeant Kyle Brinlee’s open casket at his
funeral, and when Harper’s published, promoted and sold the
photographs. The district court granted summary judgment to
Defendants Harper’s and Peter Turnley, on all claims.
Plaintiffs Showler and Davidson now appeal. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

A

Viewing the evidence in the light most favorable to
Plaintiffs, the record establishes the following facts. See
Metzler v. Fed. Home Loan Bank, 464 F.3d 1164, 1166 (10"
Cir. 2006). Sgt. Kyle Brinlee was a soldier in the Oklahoma
National Guard who was killed in action while serving in Iraq
on May 11, 2004. He was the first member of the Oklahoma
National Guard to be killed in action since the Korean war.
As such, Sgt. Brinlee’s death and funeral were the subject of
intense media coverage. Robert Showler is Sgt. Brinlee’s
biological father;' and Johnny Davidson is his maternal
grandfather and the personal representative of his estate.

Sgt. Brinlee’s family hired Stephens Memorial Chapel in
their hometown of Pryor, Oklahoma to handle the funeral
arrangements. The family made the decision to open Sgt.
Brinlee’s casket at the funeral because his “body looked fine.”
Prior to the funeral, the family met with Rick Stephens, who
ran the memorial chapel. The family relayed to Mr. Stephens

' Brinlee was adopted by Robert Brinlee, at which time Showler’s
parental rights were terminated.

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that although the media was allowed to attend the funeral, the
family did not want anyone taking pictures of Sgt. Brinlee’s
open casket, and they did not want to be interviewed.

Peter Turnley is an international photojournalist who was
working on assignment for Harper’s. Mr. Turnley is a
Contributing Editor engaged on a contract basis to produce
photo-essays. At the time of Sgt. Brinlee’s funeral, Mr.
Turnley was working on a photo-essay for Harper’s
concerning those grieving over deaths caused by the war in
Iraq. Prior to Sgt. Brinlee’s funeral, Mr. Turnley contacted
Stephens Memorial Chapel multiple times to ask whether the
press would be allowed to attend the funeral. He spoke to Mr.
Stephens twice and the office manager, Louise Floyd, once.
Mr. Stephens informed Mr. Turnley that he could attend the
funeral and take photographs, but that there would be a
section at the back of the auditorium designated for the press,
and further, that he could not interview the family.

The funeral was held at the Pryor High School
gymnasium. Over 1200 people attended the funeral and
Governor Brad Henry spoke at the service. Toward the end
of the funeral, Sgt. Brinlee’s casket was moved to the back of
the auditorium, in front of the main exit, and opened.
Governor Henry was the first in a line of people who exited
by filing past the open casket on their way out of the
auditorium. Mr. Turnley, along with other photographers in
the press section of the auditorium, took photographs during
the service. Only Mr. Turnley took photographs of Sgt.
Brinlee in his open casket.

After the graveside service, Mr. Turnley approached Mr.
Showler and introduced himself, and then indicated he had
photographed the funeral on assignment from Harper’s. Mr.
TurnJey asked Mr. Showler if he would like copies of the

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photographs. Mr. Showler responded affirmatively and
provided Mr. Turnley with his address. Mr. Showler was
unaware that Mr. Turnley had taken photographs of the open
casket, however. Mr. Showler first learned of the open-casket
photographs when he received copies from Mr. Turnley in the
mail.

One of the photographs taken by Mr. Turnley, “the
Turnley Photo,” along with nineteen other photographs
dealing with the mourning of Americans and Iraqis killed in
the war, was published in the August 2004 edition of
Harper’s. The photo-essay was titled: “The Bereaved,
Mourning the Dead, in America and Iraq.” Harper’s
promoted the photo-essay, and Mr. Turnley conducted
interviews about it with news agencies, appeared in television
programs, and entered the photograph in numerous
competitions. Defendants sold the photo-essay to French
magazine Le Monde 2 where it was also published.

Plaintiffs filed suit in diversity against Mr. Turnley and
Harper's, aiicymg tic fCllowing tort claims: Intentional
Infliction of Emotional Distress (Count 1); Invasion of
Privacy (Count II);? Violation of Okla. Stat. tit. 21, § 839.1
(Count III); Fraudulent /False Misrepresentation (Count IV);
Constructive Fraud, Fraud and Deceit (Count V); Unjust
Enrichment (Count VI); and Negligent Hiring, Retention, and
Supervision (Count VII).

On December 22, 2005, the district court entered an order
granting Defendants’ motion for summary judgment on all

? Plaintiffs’ claim for invasion of privacy is based on three theories:
appropriation, intrusion into seclusion, and publication of private
facts.

ER OS

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claims. The district court held that Defendants enjoyed First
Amendment protection because the Turnley Photo was taken
in a public place for a newsworthy article and, alternatively,
that summary judgment was appropriate on the merits of each
tort claim. This appeal followed.

II.

On appeal, Plaintiffs assert that the district court erred in
granting Defendants’ motion for summary judgment. We
review the district court’s grant of summary judgment de
novo, applying the same legal standard as the district court.
Mountain West Mines, Inc. v. Cleveland-Cliffs Iron Co. , 470
F.3d 947, 950 (10" Cir. 2006). Summary judgment is
appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c). The inquiry
essentially determines if there is a need for trial, or whether
the evidence “is so one-sided that one party must prevail as a
matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

When examining the underlying facts of the case, the
Court is cognizant that all inferences must be viewed in the
light most favorable to the nonmoving party and that it may
not make credibility determinations or weigh the evidence.
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574,
587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Further, the
Court has “discretion to affirm on any ground adequately
supported by the record, so long as the parties have had a fair
opportunity to address that ground.” Champagne Metals v.
Ken-Mac Metals, Inc. , 458 F.3d 1073, 1088 (10" Cir. 2006)
(quotations omitted).

Ta

Before reaching any constitutional question, “federal
courts must consider nonconstitutional grounds for decision.”
Jean v. Nelson, 472 U.S. 846, 854, 105 S. Ct. 2992, 2997,
86 L. Ed. 2d 664 (1985); see also United States v. Hardman,
297 F.3d 1116, 1124 (10" Cir. 2002). Because we determine
that none of the tort claims asserted in Plaintiffs’ Second
Amended Complaint can survive summary judgment, we
decline to consider whether Defendants’ actions were
privileged under the First Amendment.

A. Intentional Infliction of Emotional Distress

Oklahoma has adopted section 46 of the RESTATEMENT
(SECOND) OF TORTS (1977). See Miller v. Miller, 1998
OK 24, 956 P.2d 887, 900 (Okla. 1998). An action for this
tort will lie only where there is extreme and outrageous
conduct coupled with severe emotional distress. /d.

Liability has been found only where the conduct has
been so outrageous in character, and so extreme in
degree, as ta go beyond all nossible bounds of
decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Generally, the
case is one in which the recitation of the facts to an
average member of the community would arouse his
resentment against the actor, and lead him to exclaim,
“Outrageous!’...

Id. at 901 (quoting RESTATEMENT (SECOND) OF TORTS
§ 46 cmt. d). Also, the Defendants’ conduct must be
“considered in the setting in which the conduct occurred.”
Chellen v. John Pickle Co., 446 F. Supp. 2d 1247, 1292
(N.D. Okla. 2006) (citing Eddy v. Brown, 1986 OK 3, 715
P.2d 74, 77 (Okla. 1986)).

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The district court acts as a gatekeeper to determine
whether the Defendants’ conduct may reasonably be regarded
as sufficiently extreme and outrageous and whether severe
emotional distress can be found based on the evidence. Miller,
956 P.2d at 901; Breeden v. League Servs. Corp., 1978 OK
27, 575 P.2d 1374, 1377 (Okla. 1978); see RESTATEMENT
(SECOND) OF TORTS § 46 cmt. h. If the court finds that
reasonable people would differ in an assessment of this issue,
then the tort claim may be submitted to a jury. See, e.g.,
Breeden, 575 P.2d at 1377. Here, the district court found that
the Turnley Photo was not outrageous. It based its decision on
the fact that the photo accurately depicts the exact image that
Plaintiffs chose to expose to approximately 1200 people who
attended Sgt. Brinlee’s funeral. The district court also pointed
out that Plaintiffs made the decision to have an open casket at
the funeral because Sgt. Brinlee’s “body looked fine,” and
further found that the mere fact that the photograph was of a
deceased person was not enough to constitute outrageous
conduct.

Plaintiffs argue that whether the photograph was, in and
of itself, “grotesque” is immaterial. Instead, Plaintiffs urge
that it was Outrageous conduct for Mr. Turnley to disregard
specific instructions from Mr. Stephens not to photograph the
open casket at the funeral. Because this material fact is in
dispute— Mr. Turnley denies that this condition was placed
on his attendance— Plaintiffs maintain that summary judgment
was inappropriate because reasonable minds could differ
about whether Mr. Stephens relayed this condition and
therefore, whether Mr. Turnley ignored the condition when
he took the photographs.

We conclude that neither the photograph, nor the alleged
breach of an agreement by Mr. Turnley constituted conduct
that was so extreme and outrageous “as to go beyond all

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possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a _ civilized community.”
RESTATEMENT (SECOND) OF TORTS § 46 cmt. d. The
fact that the photograph was of a deceased’s body is not,
standing alone, outrageous, even if it was unauthorized. See
Cox Tex. Newspapers, L.P. v. Wootten, 59 S.W.3d 717, 724
(Tex. App. 2001) (“Taking pictures of a dead body is not
intolerable; in fact, such pictures are frequently taken in a
variety of situations. Publication of the rather dignified, albeit
unauthorized, pictures...was not extreme and outrageous
conduct....”). Nor is the fact that the photograph was
unauthorized transform Mr. Turnley’s actions into outrageous
conduct. See Loft v. Fuller, 408 So. 2d 619, 621-22 (Fla.
Dist. Ct. App. 1981) (finding portrayal of deceased family
member in book as a “ghost,” without permission from his
family, did not amount to outrageous conduct).

Further, it is undisputed that the photograph accurately
reflects the image of Sgt. Brinlee’s funeral and open casket,
as seen by the 1200 people in attendance. Compare Wootten,
53 S.W.3a at 724 with Reid v_ Pierce County. 136 Wn.2d
195, 961 P.2d 333, 338 (Wash. 1998) (finding disclosure of
autopsy photographs of deceased relatives outrageous). Such
“fair and accurate media coverage of official public occasions
is in the highest and best interest of the public, [and]...cannot
be treated as actionable under this rubric.” Wright v. Grove
Sun Newspaper Co., 1994 OK 37, 873 P.2d 983, 990 (Okla.
1994). Because we agree with the district court that
Defendants’ actions did not rise to the level of extreme and
outrageous conduct, summary judgment was appropriate on
this tort claim.

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B. Invasion of Privacy

Plaintiffs assert three of the four branches of the tort of
invasion of privacy: (1) appropriation; (2) publication of
private facts; and (3) intrusion upon seclusion. See
RESTATEMENT (SECOND) OF TORTS §§ 652A-E (1977)
(describing the different types of privacy torts). In addition,
Plaintiffs assert a claim under Okla. Stat. tit. 21, § 839.1. For
these claims, Plaintiffs rely generally on the Supreme Court’s
decision in National Archives & Records Administration v.
Favish, which held that the privacy exemption in the Freedom
of Information Act (“FOIA”) recognizes surviving family
members’ right to personal privacy with respect to their close
relative’s death-scene images. 541 U.S. 157, 1248S. Ct. 1570,
158 L. Ed. 2d 319 (2004). That case involved a private
citizen who requested production under the FOIA of death-
scene photographs of Vince Foster, deputy counsel to
President Clinton, who was found dead of an apparent
suicide. Plaintiffs particularly rely on language in that case
that the common law has long recognized “a family’s control
over the body and death images of the deceased.” Favish, 541
U.S. at 168; 124 S. Ct. at 1578.

Favish is inapplicable to this analysis because it relies on
a statutory privacy right under the FOIA, not a cause of
action for invasion of privacy. In fact, the Supreme Court
observed in Favish that “the statutory privacy right protected
by Exemption 7(C) goes beyond the common law and the
Constitution.” /d. at 170, 124 S. Ct. at 1579 (citing United
States Dep’t of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 762, 109 S. Ct. 1468, 1476, 103 L. Ed.
2d 774 (1989)). Likewise, the Court stated in Reporters
Committee that “[tJhe question of the statutory meaning of
privacy under the FOIA is, of course, not the same as the
question whether a tort action might lie for invasion of

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privacy or the question whether an individual’s interest in
privacy is protected by the Constitution.” Reporters
Committee, 489 U.S. at 763 n.13; 109 S. Ct. at 1476. Here,
the Court will limit its reliance to the case law construing the
tort of invasion of privacy and the specific Oklahoma statute
at issue.

Moreover, the Supreme Court’s discussion in Favish
about the cultural history of burial rights of the deceased and
surviving family members is inapposite to the facts of this
case. The Court references “outrage at seeing the bodies of
American soldiers mutilated and dragged through the streets,”
Favish, 541 U.S. at 168, 124 S. Ct. at 1578, as a modern
example of “the interests decent people have for those whom
they have lost.” /d. This type of intrusion and exploitation of
the family’s grief has traditionally been considered a violation
of the family’s privacy rights. /d. Indeed, all of the cases
cited by the Court in support of its acknowledgment that the
common law has recognized a family’s right to control the
death images of the deceased, involve death images that are
gruesome and none involve images disnlaved at a public
funeral. See id. at 169, 124 S. Ct. at 1578-79 (collecting
cases).

Courts that have found an invasion of privacy have done
so when the case involves death-scene images such as crime
scene or autopsy photographs.’ The photographs here are not

> See, e.g., id. at 161, 124 S. Ct. at 1574; Reid ». Pierce County,
136 Wn.2d 195, 961 P.2d 333, 338 (Wash. 1998); McCambridge
v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909, 915 (Ark.
1989); c.f. Bazemore v. Savannah Hosp., 171 Ga. 257, 155 S.E.
194 (Ga. 1930) (finding invasion of privacy where, after
performing surgery on a baby born with his heart on the outside of
his body, hospital employees allowed a photographer to photograph

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death-scene photographs, but images of Sgt. Brinlee in his
military uniform that accurately depict the image seen by
those who attended his funeral to pay their respects. Coupled
with the public nature of this funeral, the photographs are
distinguishable from those at issue in Favish.

We now address the specific theories of liability asserted
by Plaintiffs.

1. Appropriation and Okla. Stat. Ann. tit. 21, § 839.1

Oklahoma has codified the cause of action for
appropriation of a person’s name or likeness in Okla. Stat.
Ann. tit. 21, § 839.1 (2002). Under the RESTATEMENT
(SECOND) OF TORTS § 652C, “[o]ne who appropriates to
his own use or benefit the name or likeness of another is
subject to liability to the other for invasion of his privacy.”
Plaintiffs appear to bring separate claims for appropriation
under both the common law and statutory law, despite the fact
that the statute overlaps with the Restatement’s formulation of
the cause of action. See Le Flore v. Reflections of Tulsa, Inc. ,
1985 OK 72, 708 P.2d 1068, 1074 (Okla. 1985) (construing
claim for appropriation under the Restatement as a claim
under Oklahoma’s appropriation statute). We agree with the
district court that there is no genuine issue of material fact
with regard to either source of law on appropriation.

the child’s body and a newspaper to report on the baby’s condition,
unbeknownst to the parents.), called into question by Waters v.
Fleetwood, 212 Ga. 161, 91 S.E.2d 344, 348 (Ga. 1956). But see
Bremmer v. Journal-Tribune Pubi'g Co., 247 lowa 817, 76 N.W.2d
762, 766-67 (lowa 1956) (explaining that Bazemore was an extreme
set of facts and that the majority of courts have declined to find
liability when the press publish details of gruesome death scenes).

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Comment d to the RESTATEMENT § 652C is instructive:

No one has the right to object merely because his
name or his appearance is brought before the public,
since neither is in any way a private matter and both
are open to public observation. It is only when the
publicity is given for the purpose of appropriating to
the defendant’s benefit the commercial or other values
associated with the name or the likeness that the right
of privacy is invaded. The fact that the defendant is
engaged in the business of publication, for example of
a newspaper, out of which he makes or seeks to make
a profit, is not enough to make the incidental
publication a commercial use of the name or likeness.
Thus a newspaper, although it is not a philanthropic
institution, does not become liable under the rule
stated in this Section to every person whose name or
likeness it publishes.

The Court concludes that this comment from the Restatement
squarely annlies to the facts presented here. Harper’s is not
liable under an appropriation theory simply because it sought
to make a profit via the circulation of its magazine when it
published the photo essay that included the Turniey Photo.

With regard to the statute, the district court granted
summary judgment on this claim because there was no
evidence of “advertising.” In so holding, the court stated that
Oklahoma had, in the past, sought guidance from New York
law when interpreting this statute because it was patterned
after a similar New York law. See Le Flore v. Reflections of
Tulsa, Inc., 1985 OK 72, 708 P.2d 1068, 1074 (Okla. 1985)
(discussing the similarity between New York's appropriation
statute and § 839.2 and looking to New York cases for
guidance). New York law has made clear that right to privacy

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statutes do not apply to newsworthy events or matters of
public concern because it is not deemed for the purposes of
advertising or trade. See, e.g., Messenger ex rel. Messenger
v. Gruner + Jahr Printing & Publ’g, 94 N.Y.2d 436, 441,
727 N.E.2d 549, 706 N.Y.S.2d 52 (N.Y. 2000).

The New York Court of Appeals further held that “where
a plaintiffs picture is used to illustrate an article on a matter
of public interest, there can be no liability...unless the picture
has no real relationship to the article or the article is an
advertisement in disguise.” /d. at 442. Sgt. Briniee’s funeral
was a matter of public interest. Local and regional
newspapers printed stories and photographs about his death
and funeral. There was particular interest in the story since
Sgt. Brinlee was the first member of the Oklahoma National
Guard to be killed in action since the Korean War. There is
no evidence to suggest that the Turnley Photo, or any of the
other photographs taken, were not related to the photo-essay
that concerned grieving in the United States and Iraq over
deaths caused by the war in Iraq. And, the fact that the photo
essay was promoted and sold to another publication does not
render it an advertisement under the statute. Messenger, 94
N.Y.2d at 442 (“[T]he fact that a publication may have used
a person’s name or likeness ‘solely or primarily to increase
the circulation’ of a newsworthy article— and thus to increase
profits —does not mean that the name or likeness has been
used for trade purposes within the meaning of the statute.”).
The Turnley Photo did not constitute an appropriation of Sgt.
Brinlee’s likeness for commercial purposes under either the
Restatement or the statute and summary judgment was
appropriate on these claims.

1Sa

2. Publication of Private Facts

In order to recover for invasion of privacy by publication
of private facts, the publication must: (1) be highly offensive
to a reasonable person; (2) contain private facts; (3) be a
public disclosure of private facts; and (4) not be of legitimate
concern to others. Guinn v. Church of Christ of Collinsville,
1989 OK 8, 775 P.2d 766, 781 (Okla. 1989). The district
court found that Plaintiffs failed to establish that the Turnley
Photo contained private facts about their lives or that there
was a public disclosure of a private fact. Further, the district
court found that because the funeral was a newsworthy event,
it was of legitimate concern to others, especially considering
the fact that this was the first Oklahoma National Guardsman
to die in combat since the Korean War.

Plaintiffs argue on appeal that the family’s mourning over
Sgt. Brinlee’s death was a deeply private manner. They also
maintain that Mr. Turnley acknowledged this by contacting
Mr. Stephens to request permission to attend, which he would
not have done had he velicved it to Se 2 public event
Defendants respond that under Comment a_ to
RESTATEMENT (SECOND) OF TORTS § 652D, the
Plaintiffs left themselves “open to the public eye.”

We agree with Defendants that Plaintiffs opened up the
funeral scene to the public eye and can not, therefore,
establish that Defendants disclosed private facts by publishing
the Turnley Photo. The local newspaper notified the public in
advance of the time and place of Sgt. Brinlee’s funeral, and
it was held in a high school gymnasium to accommodate the
large crowd expected to attend. Governor Henry spoke at the
funeral, which was attended by 1200 people. Most attendees
exited the funeral by first filing past Sgt. Brinlee’s open

asket. Numerous area newspapers published stories about

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Sgt. Brinlee’s death and funeral. These facts belie the notion
that the Turnley Photo revealed information that was private
and summary judgment is appropriate on this claim.

3. Intrusion Upon Seclusion

“One who intentionally intrudes, physically or otherwise,
upon the solitude or seclusion of another or his private affairs
or concerns, is subject to liability to the other for invasion of
his privacy, if the intrusion would be highly offensive to a
reasonable person.” RESTATEMENT (SECOND) OF
TORTS § 652B (1977). The Oklahoma Supreme Court has
recognized the following two necessary elements of this
claim: (1) a nonconsensual intrusion, (2) which is highly
offensive to a reasonable person. See Dubbs v. Head Start,
Inc. , 336 F.3d 1194, 1220 (10" Cir. 2003) (citing Gilmore v.
Enogex, Inc., 1994 OK 76, 878 P.2d 360, 366 (Okla. 1994)).
Publication is not necessary to maintain an action for this tort;
the intrusion itself creates liability. See RESTATEMENT
(SECOND) OF TORTS § 652B cmt. b.

We agree with the district court that there was no genuine
issue of material fact about whether Mr. Turnley intruded into
the private affairs of Plaintiffs for the same reasons that
summary judgment is appropriate on the other privacy claims.
Even if the Court assumes Plaintiffs can meet their burden of
establishing a genuine issue of material fact that an intrusion
occurred, there is no evidence upon which a reasonable jury
could conclude that the intrusion was highly offensive to a
reasonable person. As already discussed, the photographs
accurately depicted a funeral that Plaintiffs held out to the
public. Details about the funeral were published in the local
newspaper and it was held in a high school gymnasium in
order to accommodate the 1200 people who attended, which
included the Governor of Oklahoma. Mr. Turnley took the

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photographs from an area of the high school auditorium that
was specifically designated for the press and other
photographers were present. The district court did not err in
granting summary judgment to Defendants on this claim.

C. Fraud Claims

Plaintiffs asserted claims for fraudulent or false
representation and constructive fraud based on Mr. Turnley’s
conversation with Mr. Stephens in which Plaintiffs argue Mr.
Stephens placed the specific condition on Mr. Turnley’s
attendance at the funeral that he not photograph the open
casket. The district court granted summary judgment to
Defendants on these claims because, based on the
uncontroverted facts, any misrepresentation or fraud
committed by Mr. Turnley was made toward Mr. Stephens
and not the Plaintiffs in this matter. Plaintiffs appeal the
district court’s order and argue that it misapplied principles of
agency law in granting summary judgment on these claims.

Plaintiffs do not allege a contract existed hetween the
parties, but instead base these claims on an unkept promise.
Oklahoma law requires the following elements to establish a
claim for a false or fraudulent misrepresentation: (1) the
defendant made a material misrepresentation; (2) that was
false; (3) the defendant made the misrepresentation knowing
it was false, or in reckless disregard of the truth; (4) the
defendant made the representation with the intention that it
should be acted upon by the plaintiff; (5) the plaintiff acted in
reliance upon it; and (6) plaintiff thereby suffered injury.
Sturgeon v. Retherford Publ’ns, Inc., 1999 OK CIV APP 78,
987 P.2d 1218, 1228 (Okla. Civ. App. 1999) (citing Ramsey
v. Fowler, 1957 OK 61, 308 P.2d 654, 656 (Okla. 1957)).

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Even if Plaintiffs are correct that the district court
misapplied agency principles when it granted summary
judgment on the fraud claims, Plaintiffs are unable to
establish that when Mr. Turnley allegedly promised Mr.
Stephens that he would not photograph the open casket, he did
not intend to perform that promise. Under Oklahoma law, the
general rule is that when a false representation is the basis of
the fraud, that representation must relate to existing facts or
previously existing facts, and not to promises of some future
act. Roberts v. Wells Fargo AG Credit Corp., 990 F.2d 1169,
1172 (10" Cir. 1993). An exception to this rule exists where
such a promise to act in the future is made with the intention
not to perform and with the intent to deceive. /d. “The gist of
the rule is not the breach of promise but the fraudulent intent
of the promisor at the time the pledge is made not to perform
the promise so made and thereby deceive the promisee.”
Citation Co. Realtors, Inc. v. Lyon, 1980 OK 68, 610 P.2d
788, 790 (Okla. 1980).

Plaintiffs are unable to point the Court to evidence of Mr.
Turnley’s intent at the time he spoke to Mr. Stephens on the
phone prior to the funeral. Instead, they argue that the issue
is one of credibility, which should be made by a jury. Yet
Plaintiffs produce no evidence refuting Mr. Turnley’s stated
lack of intent, nor any evidence disputing the credibility of
Mr. Turnley’s statement that he lacked such intent.

Furihermore, the claims fail because Plaintiffs are unable
to establish that they acted in reliance upon any statement
allegedly made by Mr. Turnley. While there is a disputed fact
about whether Mr. Turnley at least implicitly agreed not to
photograph Sgt. Brinlee’s open casket as a condition of his
attendance at the funeral, other photographers were present at
the funeral. And there is no evidence that the media was
required to contact Mr. Stephens ahead of time to obtain

19a

permission to attend. While some members of the public did
inquire with Stephens Memorial Chapel about whether the
press would be allowed to attend the funeral, there is no
evidence that this was required. The funeral was open to the
public, and there were no signs limiting the photographers’
permission to photograph the funeral. These facts reveal no
genuine issue of material fact about whether Plaintiffs
reasonably relied on a promise by Mr. Turnley in allowing
him to attend as a member of the press. Summary judgment
is thus appropriate on Plaintiffs’ fraud claims.

D. Unjust Enrichment

Plaintiffs’ claim for unjust enrichment is based on the
allegation that Defendants were unjustly enriched by the
publication and promotion of the Turnley Photo. “The term
‘unjust enrichment’ describes a condition resulting from the
failure of a party to make restitution in circumstances where
it is inequitable.” N.C. Corff P’ship v. OXY USA, Inc., 1996
OK CIV APP 92, 929 P.2d 288, 295 (Okla. Civ. App. 1996);
séé aise Lapkin vy. Garland Rlondworth. Inc.. 2001 OK CIV
APP 29, 23 P.3d 958, 961 (Okla. Civ. App. 2000). Unjust
enrichment is a theory of recovery and requires “enrichment
to another coupled with a resulting injustice.” N.C. Corff
P’Ship, 929 P.2d at 295. As the district court properly
reasoned, there is no evidence here of any advantage to
Harper’s or Mr. Turniey at the expense of Plaintiffs.
Likewise, there is no evidence of injustice to the Plaintiffs.
Plaintiffs argue that the photo was used to promote the
magazine and Mr. Turnley at the expense of their right to
privacy. As this Court has already determined, there is no
genuine issue of material fact with regard to Plaintiffs’ right
to privacy claims. Summary judgment was appropriate on
Plaintiffs’ unjust enrichment claim.

20a
E. Negligent Hiring

An employer may be held liable in Oklahoma for
negligent hiring, supervision, or retention of an employee.
See Escue v. N. Okla. Coll. , 450 F.3d 1146, 1156 (10" Cir.
2006); N.H. v. Presbyterian Church (U.S.A.), 1999 OK 88,
998 P.2d 592, 600 (Okla. 1999). The employer may be liable,
“if— at the critical time of the tortious incident —the
employer had reason to believe that the person would create
an undue risk of harm to others. Employers are held liable for
their prior knowledge of the servant’s propensity to commit
the very harm for which damages are sought.” Presbyterian
Church (U.S.A.), 998 P.2d at 600. Because we find that
summary judgment is appropriate on all of Plaintiffs’
underlying claims, Harper’s may not be found liable to
Plaintiffs based on its hiring, supervision, or retention of Mr.
Turnley. Further, Plaintiffs do not point to any evidence of
prior knowledge by Harper’s of any propensity by Mr.
Turnley to commit any of the torts alleged against Mr.
Turnley in the Second Amended Complaint.

Il.

While it could be argued that publication of the Turnley
Photo without prior authorization was in poor taste, for the
reasons discussed, it does not constitute an actionable claim
under any of the theories advanced by Plaintiffs. Because we
conclude that summary judgment was appropriate on each of
the Oklahoma state tort claims asserted by Plaintiffs in this
action, we need not address the First Amendment defense
asserted by Defendants in this appeal, nor do we make any
statement as to the merits of that defense. The judgment of the
district court is affirmed. The motion for leave to file an
amicus brief by Denver Post Corporation, Magazine
Publishers of America, Newspaper Association of America,

2la

New York Times Company, Oklahoma Publishing Company,
Picture Archive Council of America, The Reporters
Committee for Freedom of the Press and Tribune Company
is granted.

Entered for the Court

Julie A. Robinson
District Judge

APPENDIX B

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

No. 05-178-S

[Filed December 22, 2005]

ROBERT SHOWLER and JOHNNY
DAVIDSON, Individually and as
Special Administrator of the Estate of
Kyle Adam Brinlee,

Plaintiffs,

¥.

HARPER’S MAGAZINE FOUNDATION,
PETER TURNLEY, Individually and in
his capacity as a Contributing Editor to
HARPER’S MAGAZINE,

Defendants.

Se a ae ae ae ae, ae ee, ee, a_i

ORDER

Before the court for its consideration is the Defendant
Harper’s Magazine Foundation and Peter Turnley s Motion
for Summary Judgment filed November 10, 2005. The court
rules as follows on the motion.

23a

Findings of Facts

Sgt. Kyle Adam Brinlee Showler (“decedent”) was a
carpentry and masonry specialist in the Oklahoma Army
National Guard. Plaintiff Robert Showler (“Showler”) is
decedent’s biological father' and Plaintiff Johnny Davidson
(“Davidson”) is decedent’s biological grandfather. Decedent
was killed in action in Iraq on May 11, 2004. He was the first
Oklahoma National Guard member to be killed since the
Korean conflict in the early 1950s. Brinlee Showler’s death in
Iraq and events surrounding his funeral and burial in Pryor,
Oklahoma, were listed in Pryor Creek, Oklahoma’s The Daily
Times “2004: Year In Review” as the number one news story
of 2004.

Decedent’s funeral was held in the Pryor High School
Auditorium on May 19, 2004. The funeral was open to the
public. At the request of Showler, Oklahoma Governor Brad
Henry attended and spoke at the funeral. Approximately 1200
people attended the funeral. A local newspaper reported
“friends, family | admirers classmates. military personnel,
acquaintances and strangers filled the Pryor High School
Auditorium to capacity.” At the instruction of the plaintiffs,
decedent’s casket was placed at the back of the auditorium
and was open at the conclusion of the funeral service. Funeral
attendees passed by the open casket as they exited the high
school auditorium. The decision to have an open casket
funeral was made by plaintiffs because decedent’s body
looked “just fine”. Decedent's body was also available for
public viewing for three days prior to the funeral at Stephens

‘ In 1993, decedent was adopted by Ronald Brinlee, his then
stepfather.

24a

Memorial Chapel. Stephens Memorial Chapel was the entity
handling the funeral arrangements for the decedent.

Defendant Peter Turnley (“Turnley”) is a photojournalist
who was working on assignment for Harper’s Magazine.
Turnley was working on a photo essay for the magazine
regarding deaths caused by the war in Iraq. He contacted
Stephens Memorial Chapel in Pryor, Oklahoma, to request
permission to attend the funeral. Turnley was granted
permission to attend the funeral by Rick Stephens
(“Stephens”), the individual in charge of the funeral. He and
his staff were handling all requests by the press for admission
to the funeral. Stephens informed Turnley there would be a
section in the auditorium designated for the press. He told
Turnley he could attend the funeral and sit in that section.
Turnley, along with others members of the press, attended the
funeral. Turnley took a picture of the open casket. The
photograph was a truthful and accurate depiction of the image
that any member of the public who attended the funeral saw
or could have seen as they exited the Pryor High School
Auditorium after the funeral. This picture, along with several
other photographs dealing with the death associated with war,
were published in Turnley’s photo essay titled “The
Bereaved”. “The Bereaved” was published in the August
edition of Harper’s Magazine.

After the graveside service, Turnley spoke to Showler and
asked him if he would like to have a copy of the pictures
taken at the funeral. Showler indicated he would like to have
the photos and gave Turnley his address. Turnley never spoke
to Davidson. Showler called Harper’s Magazine in June 2004
asking when Turnley’s story about decedent would be
published and inquired about the photographs of the funeral
Turnley had offered to send. Before Turnley sent the photos,
he again confirmed that Showler wanted the pictures. It was

25a

when Showler received these photos that he realized Turnley
had taken pictures of the open casket.

I. First Amendment

As a preliminary matter, the court addresses the First
Amendment issue raised by the defense in this case. While the
court’s findings in this regard may not bear directly upon the
disposition of causes of action contained within the second
amended complaint, the court finds a discussion of the First
Amendment issues to be instructive.

In Time. Inc. v. Sand Creek Partners, L.P., 825 F.Supp.
210, 212 (S.D. Ind. 1993), the court stated:

In general, when a person’s picture is used to illustrate
a non-commercial, newsworthy article, his interest in
the use of his likeness or image must be evaluated in
light of constitutional interests found in the First

Democrat-Herald Pub. Co., 669 P.2d 818, 820
(1983). “Newsworthiness” is a First Amendment,
Freedom of Press, interest and is to be broadly
construed. As one court has explained: “The scope of
the subject matter which may be considered of ‘public
interest’ or ‘newsworthy’ has been defined in most
liberal and far reaching terms. The privilege of
enlightening the public is by no means limited to
disseminaticn of news in the sense of current events
but extends far beyond to include all types of factual,
educational and historical data, or even entertainment
and amusement, concerning interesting phases of
human activity in general.” Rogers v. Grimaldi, 695
F. Supp. 112, 117(S.D.N.Y.1988), citing, Paulsen v.

26a

Personality Posters, Inc., 299 N.Y.S.2d 501, 506
(TYBS).

It has long been recognized that use of a name or picture by
the media in connection with a newsworthy item is protected
by the First Amiendment. Jime, Inc. v. Hill, 385 U.S. 374,
388-389 (1967) and Gilbert v. Medical Economics Company,
665 F.2d 305, 308 (10" Cir. 1981) (...it is clear from the
foregoing that the First Amendment protects the publication
of private facts that are “newsworthy”, that is, of legitimate
concern to the public.)

The issue of newsworthiness has been treated as one of
either fact or law depending on the circumstances presented.
Virgil v. Time, 527 F.2d 1122, 1130 (9th Cir.1985) and
Gilbert, 665 F.2d at 309. Thus, whether newsworthiness is a
question for the judge or the jury depends upon the evidence
submitted. Where material facts are in dispute, or where the
facts present a _ particularly close question as_ to
newsworthiness, summary judgment is inappropriate. As in
other cases, the initial determination of whether or not a
factual question exists is for the court. Virgil, 527 F.2d at
1130. The court finds the material facts of this case regarding
newsworthiness are not in dispute. Thus, the court can make
the determination about newsworthiness for First Amendment

purposes.

The following facts are undeniably undisputed. Decedent
was the first Oklahoma National Guard member to be killed
in conflict since the Korean War. His funeral was open to the
public and attended by approximately 1200 people. At the
request of Showler, Brad Henry the Governor of the state of
Oklahoma spoke at the funeral. The court finds the citizens of
the state of Oklahoma and the United States of America had
an interest in the death of a United States citizen solider.

27a

Based upon the case law and the facts of this case, the court
finds the death of decedent and his subsequent funeral and
burial to be newsworthy events.

In essence plaintiffs are seeking to restrain defendants’
First Amendment right to distribute an informative photo
essay of a newsworthy event. To prevail, plaintiffs must
demonstrate their privacy interests outweigh First Amendment
concerns. Bartnicki v. Vopper, 532 U.S. 514, 534 (2001). In
Bartnicki, the United States Supreme Court stated:

One of the costs associated with participation in public
affairs is an attendant loss of privacy....state action to
punish the publication of truthful information seldom
can Satisfy constitutional standards. More specifically,
this court has repeatedly held that “if a newspaper
lawfully obtains truthful information about a matter of
public significance then state officials may not
constitutionally punish publication of the information,
absent a need...of the highest order...As Warren and
Rrandeis stated in their classic law review article:
‘The right of privacy does not prohibit any publication
of matter which is of public or general interest.’ The
Right to Privacy, 4 Harv. L. Rev. 193, 214 (1890).
Id. at 527-534. (Citations omitted)

It is well settled law that the First Amendment provides
protection for news coverage of public events. It appears
undisputed the funeral of decedent was a public event. It was
held in a high school auditorium and it was open to the
public. The court has previously found it was a newsworthy
event. There is also no dispute the photograph which was
taken was an accurate depiction of an event which occurred
at the funeral.

28a

Plaintiffs have argued they had a right to privacy to say
goodbye to their loved one in the manner which they saw fit
and defendant Harper’s Magazine’s publication of the picture
in question violated that right. In support of their argument
that they had a right to control the funeral and burial of their
loved one, plaintiffs cite National Archives and Records
Administration v. Favish, 541 U.S. 157 (2004). Favish dealt
with a request of a private individual for production of
already existing government photographs under the federal
Freedom of Information Act. In Favish, an individual was
requesting official photographs taken by the Capital Hill
Police of the site of Deputy White House Counsel Vince
Foster’s suicide. These photographs had not been made
public. In the Favish decision, the court notes the family’s
right to control disposition of the body of their loved one and
to limit intrusion of the public. This court finds the Favish
case distinguishable from the case at bar because the
photograph in question was taken at a public, newsworthy
event. The scene documented in the photograph was the same
scene the funeral attendees observed.

Further, the court finds Favish not applicable because the
court does not see how the defendants interfered with the
plaintiffs burying of their loved one. Plaintiffs made all the
decisions regarding the funeral and burial. Attendance at the
funeral and viewing of the decedent could have been limited
to the family or even plaintiffs but plaintiffs chose to open it
to all comers. Plaintiffs had the right to control the burial of
their loved one but chose to toss control of the event to the
wind and even sought celebrity of politicians and the public.
Defendants did not interfere with this process but rather
photographed what plaintiffs chose to make public. Thus, the
facts do not indicate that their right to privacy was violated in
regard to the funeral and burial of the decedent.

29a

Finally, the court finds plaintiffs’ right to privacy in
burying their loved one does not outweigh the right of the
public to view this newsworthy photo under these
circumstances. In fact, piaintiffs appear to have put the death
of their loved one in the public eye intentionally to draw
attention to his death and burial. That would be the only
reason for inviting the press to attend the funeral. Plaintiffs
wanted the death of their loved one publicized. Plaintiffs, not
defendants, made the funeral of decedent a public event.
Plaintiffs, not defendants, chose to have the casket open at the
funeral. Plaintiffs, not defendants, decided to invite the press
to the funeral. If the plaintiffs wanted to grieve in private they
should not have held a public funeral and had a section
reserved for the press. It is difficult for the court to see how
plaintiffs can now complain that their right to privacy was
violated about something they intentionally chose to expose to
the public.

This case is similar to Cheatham v. Paisano Publications,
Inc., 891 F.Supp. 381 (W.D.Ky.1995). In Cheatham,
piaintff, a clothing designer ware same of her unusual
designs to a public event. Turnley was complying a photo
essay of the event and published a picture of plaintiff wearing
one of her unusual outfits. Plaintiff sued. The court found that
plaintiff wore her unusual design to the public event to attract
attention to herself and her design. In so finding the court

stated:

Paisano’s merely took photos at the event and
published them as part of their photo essay of the
event. In doing so, Paisano’s invaded no rights of
Plaintiff's. This Court finds that publishing Plaintiff's
photo as part of the photo essay is a newsworthy item
and is entitled to First Amendment protection. /d. at
386.

30a

Such is also true in the case at bar. Defendants merely
published pictures of a public event in their photo essay. In
Neff v. Time, Inc., 406 F. Supp. 858, 861 (W.D. Pa. 1976)
the court stated:

A factually accurate public disclosure is not tortious
when connected with a newsworthy event even though
offensive to ordinary sensibilities. The constitutional
privilege protects all truthful publications relevant to
matters of public interest.

The court finds the fact this picture was taken in a public
place for a newsworthy article, entitles the defendants to First
Amendment protection. Time, Inc., 385 U.S. at 397, n.5.?

II. Intentional Infliction of Emotional Distress

In order to establish their claim for intentional infliction
of emotional distress, plaintiffs must show (1) intentional
conduct, (2) so outrageous and extreme to go beyond the
bounds of decency, and (3) which causes mental distress so
severe no reasonable person could be expected to endure it.
Breeden v. League Services Corporation, 575 P.2d 1374,
1376 (Okla. 1974). Oklahoma law requires the trial court to
determine as a matter of law if the alleged conduct of the
defendant is sufficiently extreme and outrageous, as defined
in Sec. 46 of the Restatement (Second) of Torts, to allow
recovery. /d. at 1377. “It is also the trial court’s initial

Plaintiffs have also argued that defendants are not entitled to First
Amendment protections because they committed a crime or a tort
in obtaining the picture. As will be discussed subsequently in this
order, the court has found no tort was committed in taking the
photo. Further, the Turnley broke no laws in taking the photo.

3la

responsibility to determine whether the stress allegedly
suffered by the Plaintiff is severe emotional distress.” Zeran
v. Diamond Broadcasting, 203 F. 3d 714, 721 (10"™ Cir.
2000).

Assuming plaintiffs could establish cither intentional or
reckless conduct they cannot establish the next element of this
tort. Plaintiffs cannot establish that the publication of the
picture was so outrageous and extreme as to go beyond all
possible boundaries of decency. It is important to note that the
plaintiffs made the decision to have an open casket funeral
because the decedent’s body “looked fine”. The picture was
an accurate depiction of the decedent in the casket. Plaintiffs
make no allegation that the photograph is grotesque. Plaintiffs
simply allege in their second amended complaint, “[t}he
published photograph depicts the remains of a deceased
human being and is emotional, sensational and disturbing.”
However, it is a picture of the exact same image of which
they intentionally chose to expose the approximately 1200
people who attended the funeral. It is difficult to conceive
how olaintiffe can now claim this came image is so outrageous
and extreme as to go beyond all bounds of decency.

Plaintiffs seem to contend the mere fact Turnley took a
photograph of a deceased person and the fact Harper’s
Magazine published it, is enough to establish intentional
infliction of emotional distress. Mere publication of a picture
of a dead body is not enough to constitute extreme and
outrageous conduct. In Cox Texas Newspapers, L.P. v.
Wootten, 59 S.W. 3d 717 (Tex. Ct. App. 2001), Mr.
Wootten’s wife had died. He had given the funeral home
specific instructions not to open her casket, as she had
requested not to be viewed after death. The Austin American-
Statesmen was doing a story on funeral homes. They were
given full access to the funeral home and took a picture of

32a

Mr. Wooten’s wife in her casket. In ruling the plaintiff did
not have a claim for emotional distress, the court stated:
“Taking pictures of a dead body is not intolerable; in fact,
such pictures are frequently taken in a variety of situations.
Publication of the rather dignified, albeit unauthorized,
pictures of Barbara Wootten’s body was not extreme and
outrageous conduct by the Statesman.” J/d. at724.
Accordingly, the court grants the defendanis’ request for
summary judgment on the plaintiffs’ claim for intentional
infliction of emotional distress.

III. Invasion of Privacy

Oklahoma recognizes four invasion of privacy torts.
McCormack v. Oklahoma Publishing Company, 613 P.2d
737, 739 (Okl. 1980). In their second amended complaint,
plaintiffs allege three of those causes of action.

First, plaintiffs allege the tort of appropriation.
Appropriation is available when another’s name or likeness is
appropriated for acommercial purpose. LeFlore v. Reflections
of Tulsa, Inc., 708 P.2d 1068, 1074 (Okla. 1985). This
common law tort has been codified by statute. 12 O.S. Sec.
1448 authorizes suit for publicity of a deceased person. 12
O.S. Sec. 1448 provides:

Any person who uses a deceased personality’s name,
voice, signature, photograph, or likeness, in any
manner, on or in products, merchandise, or goods, or
for purposes of advertising or selling, or soliciting
purchases of, products, merchandise, goods, or
services, without prior consent from the person or
persons specified in subsection C of this section, shall
be liable for any damages sustained by the person or
persons injured as a result thereof, and any profits

33a

from the unauthorized use that are attributable to the
use shall be taken into account in computing the actual
damages. In establishing these profits, the injured
party or parties shall be required to present proof only
of the gross revenue attributable to the use and the
person who violated this section is required to prove
his or her deductible expenses. Punitive damages may
also be awarded to the injured party or parties. The
prevailing party or parties in any action under this
section shall also be entitled to attorney’s fees and
costs.

N. This section shall not apply to the use of a
deceased personality’s name, voice, signature,
photograph, or likeness, in any of the following
instances: 1. A play, book, magazine, newspaper,
musical composition, exhibit, display, film, radio or
television program, other than an advertisement or
commercial announcement not exempt under
paragraph 4 of this subsection;

It is undisputed the picture in question was published in
Harper’s Magazine as part of a news photo essay. It has long
been recognized that use of a name or picture by the media in
connection with a newsworthy item is protected by the First
Amendment and is not considered a use for purposes of trade.
Gautier v. Pro-Football, 107 N.E.2d 485, 488 (N.Y. 1952).
This is true irrespective of the fact that such publications are
carried on largely, and even primarily, to make a profit. Neff,
406 F. Supp. at 861. The court does not see how this photo
was being used for commercial purposes. It was part of a
news article. Further, the plain language of 12 0.S. Sec. 1448
(N) (1) is clear that this section does not apply to a magazine
article. Thus, plaintiffs cannot establish the elements
necessary for a cause of action under this section. The picture

34a

to which plaintiffs object was simply not used for commercial
purposes.

Plaintiffs also plead a cause of action for publication of
private facts. In order to prevail on this theory plaintiffs have
to show that defendants’ publication of the picture in question
was (1) highly offensive to a reasonable person, (2) contained
private facts about the plaintiffs’ lives, (3) was a public
disclosure of private facts and (4) was not of legitimate
concern to others. Hadnot v. Shaw, 826 P.2d 978, 985 (Okla.
1992) and Guinn v. Church of Christ of Collinsville, 775 P.2d
766, 781 (Okla. 1989). The court finds the plaintiffs cannot
establish the elements of this tort. Plaintiffs cannot establish
the photo contained private facts about the plaintiffs’ lives and
plaintiffs cannot establish there was a public disclosure of a
private fact. The photo was an accurate depiction of a scene
made public. Plaintiffs chose to open the casket of the
decedent at a funeral that was open to the public. Over 1200
people viewed the decedent’s remains at his funeral.
Defendants’ picture was just a depiction of this public event.
The picture did not reveal any more than the 1200 funeral
attendees saw as they were exiting the funeral. The picture of
decedent was not a publication of a private fact. It was
publication of a public fact: a fact which plaintiffs chose to
make public.

Finally, the court also believes the plaintiffs could not
establish the final element of this cause of action. The court
has found that the decedent’s death and subsequent funeral
were newsworthy events. As stated previously, decedent was
the first Oklahoma National Guard member to be killed since
the Korean conflict. Brad Henry, the Governor of the State of
Oklahoma, spoke at his funeral. The funeral was open to the
public. It is evident it was an important local event by the
1200 people or more who attended the funeral. The local

35a

newspaper called his death and funeral the news story of
2004. It is difficult for the court to see how publication of a
picture of this funeral was not a matter of legitimate public
concern.

Plaintiffs have also alleged a cause of action for the tort of
intrusion upon seclusion. This cause of action is defined as
“[{o]ne who intentionally intrudes, physically or otherwise,
upon the solitude or seclusion of another, or his private affairs
or concerns, is subject to liability to the other for invasion of
his privacy, if the intrusion would be highly offensive to a
reasonable person.” Munley v. ISC Financial House, Inc.,
584 P.2d 1336, 1339 (OkI. 1978). According to the holding
in Munley, the defendant is only liable when he has intruded
into a private place. The court simply fails to see how this
was an intrusion into the private life of the plaintiffs. Turnley
sought permission to attend the public funeral of decedent. He
was granted permission to attend and he took truthful and
accurate pictures of what occurred at the event. The funeral
was covered by the press and opened to the public. A school
auditorium tc which the general nnblic is invited is not a
private place. Defendants did not intrude upon plaintiffs plans
for the funeral or burial. There simply was no intrusion into
the private affairs of the plaintiffs.

The court likens this public event to a matter of public
record. The United States Supreme Court has stated about
matters of public record “the interests of privacy fade when
the information involved already appears on the public
record,” and concluded that “once true information is
disclosed in public court documents open to public inspection,
the press cannot be sanctioned for publishing it.” Cox
Broadcasting Corp. v. Cohn, 420 U.S. 469, 496 (1975).
Further, the Restatement of Torts (Second), Section 252D,
which the Oklahoma Supreme Court has adopted, provides

36a

“[t]here is no liability for giving publicity to facts about the
plaintiff's life which are matters of public record.”
McCormack v. Oklahoma Pub. Co., 613 P.2d 737, 742
(Okla. 1980). Basically, what Turnley did was give further
publicity to a scene which plaintiffs chose to make public.
Accordingly, the court fails to see how the plaintiffs can
establish the elements for the tort of intrusion upon seclusion.
Defendants’ motion for summary judgment on all the invasion
of privacy claims is hereby granted.

IV. 21 O.S.A. Sec. 839.1
21 0.S.A. 839.1 provides:

Any person, firm or corporation that uses for the
purpose of advertising for the sale of any goods,
wares or merchandise, or for the solicitation of
patronage by any business enterprise, the name,
portrait or picture of any person, without having
obtained, prior or subsequent to such use, the consent
of such person, or, if such person is a minor, the
consent of a parent or guardian, and, if such person is
deceased, without the consent of the surviving spouse,
personal representatives, or that of a majority of the
deceased’s adult heirs, is guilty of a misdemeanor.

The statute is clearly limited to photos that are used for
the purpose of advertising. While plaintiffs have argued in
their second amended complaint that the picture had
commercial value, Davidson in his deposition testimony
admits the photo is not an advertisement. Thus, it is difficult
to see how the plaintiffs, based upon these facts, can proceed
on this cause of action. However, case law also appears to
preclude their cause of action as well.

37a

There is little Oklahoma case law regarding this statute.
However, this statute appears to bepatterned after a similar
New York law. In fact, one of the few cases on record
interpreting this statute looked to New York law for guidance.
LeFlore v. Reflections of Tulsa, Inc., 708 P.2d 1068, 1074
(Okla. 1985). A New York court stated “{w]e have made
clear that these sections do not apply to reports of newsworthy
events or matters of public interest. This is because a
newsworthy article is not deemed produced for the purposes
of advertising or trade.” Messenger ex. Rel. Messengerv.
Gruner + Jahr Printing and Publishing, 94 N.Y. 2d 436, 441
(2001) “The fact that Sports Illustrated is a magazine
published for profit does not constitute a ‘commercial
appropriation of Neff’s likeness.’ The fact that Neff was
photographed in a public place for a newsworthy article,
entitles the defendant to the protection of the 7ime, Inc. v.
Hill, 385 U.S. 374, 397 (1967); New York Times Co. v.
Sullivan, 376 U.S. 254(1964).” Neff, 406 F. Supp. at 861.
The photo essay was a news piece regarding a newsworthy
event, not done for the purpose of advertising. This is true
even though the magazine is designed to make a profit.
Gautier v. Pro-Football, 107 N.E.2d 485, 488 (N.Y. 1952).
It appears this statute is not intended to apply to an article
covering a newsworthy event. Accordingly, defendants’
motion for summary judgment on 21 O.S. 839.1 is hereby
granted.

V. Fraudulent/False Representation

Plaintiffs have alleged that Turnley promised not to take
pictures of the open casket. Dased upon this promise, they say
he was allowed admission into the funeral. Plaintiffs claim
that when he took pictures of the open casket and then
published them in Harper’s Magazine, a fraud had been
committed. They believe Turnley used fraudulent

38a

representation to gain admission into the funeral. To recover
under the theory of fraudulent representation, plaintiffs must
prove:

(1) the defendant made a material misrepresentation;
(2) that it was false; (3) the defendant made the
representation knowing it was false or in reckless
disregard of the truth; (4) that the defendant made it
with the intention that it should be acted upon by the
plaintiff; (5) that plaintiff acted in reliance upon it;
and (6) that plaintiffs thereby suffered injury.
Sturgeon v. Retherford Publications, Inc., 987 P.2d
1218, 1228 (Okla. Civ.App. Div. 1999) (citations
omitted).

The court went on to state “[a]ll of these allegations must
be proven with a reasonable degree of certainty, and all of
them must be found to exist. Obviously, an essential element
of this tort is proof of detrimental reliance on the
misrepresentation by the person claiming injury.” Sturgeon at
1228. eo

As the court states in Sturgeon, an essential element of
this tort is detrimental reliance on the misrepresentation by the
person claiming the injury. In the case at bar, plaintiffs claim
that Turnley promised Stephens that he would not take a
picture of the decedent in the open casket. Plaintiffs allege
that based upon this promise made by Turnley to Stephens,
Turnley was allowed to attend the funeral. If in fact this
promise was made, it is undisputed the promise was made to
Stephens. Stephens, not plaintiffs, was the one who relied
upon it when admitting Turnley to the funeral. Further, the
undisputed facts reveal that Showler did not talk to Turnley
until after the funeral and that Davidson has never talked to
Turnley. Thus, it is factually impossible for the plaintiffs to

39a

have relied upon a statement by Turnley when admitting him
to the funeral.

Plaintiffs argue that Stephens was their representative and
acting on their behalf. As such, the false promise by Turnley
was in essence made to them. However, the court has found
no case law to support this position. The facts are clear that
Showler and Davidson did not detrimentally rely on any
statement by Turnley. Thus, plaintiffs cannot establish one of
the necessary elements for this cause of action. Accordingly,
defendants are entitled to summary judgment on piaintiffs’
fraudulent/fraudulent representation claim.

VI. Constructive Fraud/Fraud/Deceit

In the fifth cause of action, plaintiffs allege that Turnley’s
action of promising not to photograph the open casket in order
to gain entrance into the funeral constituted constructive
fraud, fraud and deceit.

In order to establish constrictive fraud plaintiffs must
show concealment of a material fact by one who has a duty to
disclose. Varn v. Maloney, 516 P.2d 1328, 1332 (Okla.
1973). Constructive fraud may be based on either an equitable
duty or legal duty. Faulkenberry v. Kansas City Southern Ry.
Co. , 602 P.2d 203, 206 (Okla. 1979). “Under Oklahoma law,
a claim for constructive fraud requires a showing that the
defendant owed some form of duty to the plaintiff, such as a
fiduciary duty or a duty based upon a confidential relationship
or a special relationship of trust.” Buford White Lumber Co.
v. Octagon Properties, Lid., 740 F.Supp. 1553, 1570
(W.D.Okla. 1989). Black’s Law Dictionary (7th Ed.1999)
defines a legal duty as “a duty arising by contract or by
operation of law; an obligation the breach of which would be
a legal wrong.” The court does not find that under the facts

40a

set forth here there was either a legal or equitable duty owed
by defendants to plaintiffs. There was neither a contractual
duty nor was there a relationship of confidence or special
trust. In fact, Davidson has never spoken to either of the
defendants. Showler’s contact with Turnley was after the
funeral. Under the facts of this case there also does not appear
to be a special relationship of trust. Accordingly, the
defendants are entitled to summary judgment on plaintiffs’
claim for constructive fraud.

The essential elements of fraud are well settled. The
plaintiffs “must show a material false representation, made
with knowledge of its falsity or recklessly without knowledge
as to its truth or falsity, as a positive assertion, with the
intention that it be acted upon by another, who does act in
reliance thereon, to his injury.” Varn v. Maloney, 516 P.2d
1328, 1332 (Okl. 1973). Again, the fraudulent statement if
made was not made to plaintiffs but rather was made to
Stephens the funeral director. Thus, the plaintiffs cannot
establish an essential element of fraud which is, the statement
was made to them and they were induced to action by it.
Thus, defendants are entitled to summary judgment on
plaintiffs’ fraud claim.

Plaintiffs have also alleged a cause of action for deceit.
The elements for a cause of action for deceit are:

(1) the defendant made a material misrepresentation;
(2) that it was false; (3) the defendant made the
representation knowing it was false or in reckless
disregard of the truth; (4) that the defendant made it
with the intention that it should be acted upon by the
plaintiff; (5) that plaintiff acted in reliance upon it;
and (6) that plaintiffs thereby suffered injury. All
these allegations must be proven with a reasonable

4la

degree of certainty, and all of them must be found to
exist. Obviously, an essential element of this tort is
proof of detrimental reliance on the misrepresentation
by the person claiming injury. Sturgeon y. Retherford
Publications, Inc., 987 P.2d 1218, 1228 (Okla.
Civ.App. Div. 1999) (citations omitted).

Once again, plaintiffs cannot maintain an action for deceit
because if, in fact, Turnley did promise not to take pictures of
the open casket, he made the promise to Stephens, not to
plaintiffs. Thus, plaintiffs were not the ones deceived.

In Cooper v. Parker-Hughey, 894 P.2d 1096 (Okla.1995),
plaintiff sued Dr. Parker-Hughley for fraud/déceit because he
alleged that her testimony on the stand at his criminal trial
was false. The court noted:

Title 76 O.S.1981, § 2, permits one damaged by
another’s deceit to receive damages. It provides:

‘One who willfully deceives another, with
intent to induce him to alter his position to his
injury or risk, is liable for any damage which
he thereby suffers.” Yet this provision permits
recovery for one deceived by another. In the
case at bar, if Dr. Parker-Hughey did lie on
the stand, then she deceived the jury rather
than Cooper, and Cooper cannot rely on the
deceit practiced upon the jury as deceit
practiced upon himself. In addition, the court
read this statute to include injury to another
where the language unambiguously indicates it

42a

applies only to injury suffered by the one deceived.
Id. at 1100.

This case at bar is very similar to the Cooper case. In
Cooper if the doctor lied it was the jury which was deceived.
In the instant case, if Turnley lied it was Stephens who was
deceived and not the plaintiffs. Accordingly, the defendants
are entitled to an order granting them summary judgment on
plaintiffs’ deceit claim because they cannot establish they
acted upon the deceitful statement of Turnley.

VII. Unjust Enrichment

The term “unjust enrichment” describes a condition
resulting from the failure of a party to make restitution in
circumstances where it is inequitable. It is a recognized
ground for recovery in Oklahoma. “A right of recovery under
the doctrine of unjust enrichment is essentially equitable, its
basis being that in a given situation it is contrary to equity and
good conscience for one to retain a benefit which has come to
him at the expense of another.” Lapkin v. Garland
Bloodworth, Inc. , 23 P.3d 958, 961 (Okla.Civ. App. Div. 2,
2000). Before a party will be entitled to recover for unjust
enrichment, however, “there must be enrichment to another
coupled with a resulting injustice.” N.C. Corff Partnership,
Lid. v. OXY USA, Inc. , 929 P.2d 288, 295 (Okl.App. 1996).
In the case at bar, the court finds there is no benefit to
defendants at the expense of the plaintiffs. The photograph as
discussed previously is entitled to First Amendment
protection. The court has also found there was no tort
associated with either the taking of the photograph or the
subsequent publication of the photograph. Thus, there was no
harm to plaintiffs that resulted in an unjust enrichment to
defendants. Accordingly, the defendants are entitled to

43a

summary judgment on plaintiffs’ claims for unjust
enrichment.

VIII. Negligent Hiring

In order to establish a cause of action for negligent hiring
the plaintiffs must show that there is a (1) relationship of
master and servant, and (2) the tortitous act must have been
committed while the employee was acting within the scope of
employment. Rodebush v. Oklahoma Nursing Homes, Inc.,
867 P.2d 1241 (Okla. 1993). In the case at bar, the court has
found that no tort was committed. Accordingly, the plaintiffs
cannot establish that a tort was committed during the scope of
employment. Thus, the defendants are entitled to summary
judgment on plaintiffs’ negligent hiring/supervision claim.

CONCLUSION

Based on the foregoing reasons, Defendants’ Motion for
Summary Judgment is hereby granted in its entirety.

IT IS SO ORDERED this _22™ day of December,
2005.

/s/

Frank H. Seay
United States District Judge

APPENDIX C

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

Case No. 05-CV-178-S

{Filed November 1, 2005]

ROBERT SHOWLER,

JOHNNY DAVIDSON, Individually

and as Special Administrator of the

Estate of Kyle Adam Brinlee,
Plaintiffs,

VS.

HARPER’S MAGAZINE FOUNDATION,
PETER TURNLEY, Individually and
in his capacity as a Contributing Editor
to HARPER’S MAGAZINE,
Defendants.

A i a i ee ee a ae a

ATTORNEY LIEN CLAIMED
SECOND AMENDED COMPLAINT

COMES NOW Plaintiffs, Robert Showler and Johnny
Davidson, Individually and as Special Administrator of the
Estate of Kyle Adm Brinlee, by and through their attorneys
of record, Douglas Stall and Marcus N. Ratcliff, of the law

45a

firm LATHAM, STALL, WAGNER, STEELE & LEHMAN,
P.C., Tulsa, Oklahoma, and bring this action against the
Defendants for violation of Oklahoma privacy, statutory and
common laws. In support of this Second Amended Complaint,
Plaintiffs state as follows:

JURISDICTION AND VENUE

l. Plaintiff Pobert Showler is a resident of Wagoner,
Oklahoma, which is situated in the Eastern District of
Oklahoma. Mr. Showler has been damaged as a result of
Defendants’ wrongful conduct as described herein in the
Eastern District of Oklahoma.

y & Plaintiff Johnny Davidson is a resident of Mayes
County, Oklahoma. Mr. Davidson brings these claims
individually and as Special Administrator of the Estate of
Kyle Adam Brinlee for damages sustained as a result of
Defendants’ wrongful conduct.

3 Deicnuamt Harper’s Magazine Foundation

(“Harper’s”) is an Illinois corporation with its principal
executive offices located at 666 Broadway, New York, New
York, 10012. Harper’s conducts business within the Eastern
District of Oklahoma and venue is proper pursuant to 28
U.S.C. § 1391(c).

4. Defendant Peter Turnley (“Defendant Turnley”) is a
resident of New York, New York. Mr. Turnley solicits
business within the Eastern District of Oklahoma. Venue is
proper pursuant to 28 U.S.C. §1391{a).

5. Diversity of citizenship exists between the Plaintiffs
and Defendants pursuant to 28 U.S.C. § 1332. The amount in
controversy exceeds $75,000.00.

46a

FACTS

6. Robert Showler is the natural father of Kyle Adam
Brinlee a/k/a Kyle Brinlee Showler (“Kyle”), deceased.
Kyle’s natural mother pre-deceased him.

7 Johnny Davidson is the grandfather of Kyle and
Personal Representative of the Estate of Kyle Adam Brinlee.

8. Kyle was deployed to Iraq on or about February 12,
2004, as a member of Detachment 1, Company B, 120th
Combat Engineer Battalion. He was a carpentry and masonry
specialist who joined the National Guard in April, 2001. On
May 11, 2004, Kyle was killed in action when an improvised
explosive device detonated near his vehicle in Iraq.

9. Kyle’s funeral was scheduled for May 19, 2004.
Stephens Memorial Chapel in Pryor, Oklahoma handled the
arrangements. Prior to the funeral, the owner and director of
Stephens Memorial Chapel, Rick Stephens, received a
telephone call from Defendant Turnley. Defendant Turnley
requested permission to attend Kyle’s funeral. Mr. Stephens
stated that Defendant Turnley could attend the funeral and that
the press was permitted to photograph and/or videotape the
processional. Mr. Stephens unequivocally stated that Plaintiffs
would not allow photographs of Kyle Brinlee’s open casket to
be taken. Mr. Stephens also informed Defendant Turnley that
the family did not want the media harassing or making contact
with them during the funeral service.

10. Defendant Turnley acknowledged the Plaintiffs’
instructions and expressly agreed and promised he would not
photograph Kyle’s open casket and that he would not make
contact with the Plaintiffs during the funeral service.

47a

11. Defendant Turnley induced permission to attend the
funeral by falsely representing and promising that he would
adhere to the Plaintiffs’ instructions.

12. Defendant Turnley attended Kyle’s funeral on May 19,
2004 in Pryor, Oklahoma. The actual funeral service was held
in the Pryor High School Auditorium. A small section of the
auditorium was reserved for the press. Defendant Turnley,
was instructed he could not photograph the open casket of
Kyle Brinlee. Defendant Turnley, was further instructed not
to contact Plaintiffs during the funeral service.

13. Prior to the commencement of the funeral service, Mr.
Stephens spoke to Defendant Turnley and again informed him
of the family’s instructions.

14.Defendant Turnley again agreed to the family’s
instructions.

15. Plaintiffs were unaware Defendant Turnley photographed
the open casket.

16. Harper’s publishes a periodical each month. The
periodicals are distributed through interstate conmnerce
throughout the United States of America. In August, 2004
Harper’s published a photograph of Kyle’s remains without
the consent of Plaintiffs. Harper’s solicited business and sales
by placing the following on the cover of the periodical:

THE BEREAVED
Mourning the Dead, in America and Iraq
A Photo Essay by Peter Turnley

17. The Photo Essay commences on page 43 of the August
2004 edition. On page 44, mourners at Kyle’s funeral are

48a

shown and the caption reads: “Funeral services in Pryor,
Okla., for Army Spc. Kyle A. Brinlee, twenty-one, killed
when his convoy struck an improvised explosive device in Al-
Asad, Iraq, on May 11, 2004.” The Defendants then
published a picture of Kyle’s remains in his open casket on
page 47. The caption reads: “The casket of Spc. Brinlee at
funeral services in a high school auditorium in Pryor,
Oklahoma.”

18. Prior to the publication and distribution of the August
2004 edition, the Defendants promoted the sale of the photo
essay entitled “THE BEREAVED” and Harper’s Magazine
through several mediums, including but not limited to, radio,
internet, television, print and lecture.

19. Subsequent to the publication and distribution of the
August 2004 edition, the Defendants continued to promote the
sale of the photo essay “THE BEREAVED” and Harper’s
Magazine through several mediums, including but not limited
to, radio, internet, television, print and lecture.

20. For example, Defendant Turnley appeared on the Leonard
Lopate radio show on August 5, 2004 and the MSNBC show
“Hardball with Chris Matthew” on September 7, 2004 to
promote “THE BEREAVED.” Defendant Turnley discussed
the United States of America’s Military policy of not releasing
any photographs or permitting photographers to take and
publish photographs of the remains of United Stafes’ soldiers
killed in the line of duty. Defendant Turnley not only
disregarded the policy of the Military of the United States of
America, he also intentionally disregarded the rights and
emotions of the Plaintiffs. Defendant Turnley continued to
promote the “THE BEREAVED” and stated that a
photograph of Kyle’s remains was depicted in the photo
essay.

49a

21.In August 2004, Plaintiff Robert Showler observed the
picture of his deceased son’s remains in the August edition of
Harper’s. The photograph has caused and continues to cause
Plaintiff Robert Showler severe emotional and mental distress.

22.The photograph has caused and continues to cause
Plaintiff Johnny Davidson severe emotional and mental
distress.

23. After Plaintiff Robert Showler observed his son’s
photograph in Harper’s magazine, Defendant Turnley sent
additional photographs to Plaintiff Showler’s home. These
photographs also depicted Kyle’s remains and have caused
additional anger, distress and emotional distress.

FIRST CLAIM FOR RELIEF

INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS

23 as if fully set forth herein.

25. A funeral service is a private religious ceremony and a
rite of passage. In complete disregard for this sacred
ceremony, Plaintiffs’ privacy rights and their feelings and
instructions, Defendant Turnley took photographs of Kyle’s
remains during his funeral.

26. The Defendants then published the photograph of Kyle’s
remains and distributed it through interstate commerce
throughout the United States. The Defendants promoted the
sale of the August, 2004 edition of Harper’s Magazine
through several mediums, including but not limited to, radio,
internet, television, print and lecture. The Defendants

50a

received recognition, business, sales and profits from the
photo essay “THE BEREAVED.”

27. The Defendants intentionally and recklessly caused severe
emotional distress to Plaintiffs. The Defendants knew the
United States Military had a policy of not releasing any
photographs or permitting, photographers to take and publish
photographs of the remains of United States’ soldiers killed in
the line of duty. In total disregard of not only this policy, but
also Plaintiffs’ rights and feelings, Defendants published a
photograph of Kyle's remains.

28. Kyle’s photograph was taken after Defendant Turnley
acknowledged Plaintiffs’ instructions and expressly agreed
and promised he would not photograph Kyle’s remains in his
open casket. The published photograph depicts the remains of
a deceased human being and is emotional, sensational and
disturbing. This photograph was published so the Defendants
would reap recognition, sales, business and profits.

29. Plaintiffs’ were mourning the death of Kyle. It was
unbearable for Plaintiffs to see an unauthorized and nationally
published photograph of Kyle’s remains. Moreover, Plaintiffs
were unaware any photographs were taken of Kyle’s remains
and were further distressed when Defendant Turnley sent
additional photographs depicting Kyle’s remains to Plaintiff
Robert Showler’s home.

30. The actions of the Defendants were so extreme and
outrageous as to go beyond all bounds of decency and are
considered atrocious and utterly intolerable in this society.

31. As a direct and proximate resu!t of Defendants’ wrongful
conduct, Plaintiffs suffered actual damages, including pain

Sla

and suffering, attorneys’ fees and costs associated with this
action in excess of $75,000.00.

32. Defendants’ outrageous conduct was reckless, willful,
wanton and malicious, thereby entitling Plaintiffs to the
recovery of punitive damages against the Defendants.

WHEREFORE, Plaintiffs pray that the Court enter
judgment in favor of Plaintiffs and against all Defendants, and
award Plaintiffs such actual damages and punitive damages as
the jury may award them, including Plaintiffs’ costs,
reasonable attorneys’ fees and interest, together with all
further relief this Court deems just and proper.

SECOND CLAIM FOR RELIEF

INVASION OF PRIVACY

33. Plaintiffs incorporate by reference paragraphs 1 through
32 as if fully set forth herein.

34. Defendant Turnley was instructed on more than one
occasion that no photographs were to be taken of Kyle’s
remains in his casket. In disregard of Plaintiffs’ common law
and statutory privacy rights, and in contravention of Plaintiffs
express instructions and Defendants’ agreement thereto, the
Defendants took multiple photographs depicting Kyle’s
remains; published said photographs without Plaintiffs’
consent; and reaped recognition, sales, business and profits.

35. Defendants’ appropriation of Kyle’s name and remains at
his private funeral service was solely for the Defendants’
financial advantage and commercial benefit. The Defendants’
used Kyle’s name and a photograph of his remains for their
own financial gain and recognition in direct violation of

52a

Plaintiffs’ instructions that no photographs were permitted
during Kyle’s funeral service.

36. A funeral service is a private religious ceremony and a
rite of passage. In complete disregard for this sacred
ceremony, Plaintiffs’ privacy rights and their feelings and
instructions, Defendant Turnley took photographs of Kyle’s
remains during his funeral.

37. The publication of the photograph of Kyle’s remains is an
unreasonable publicity of the private life of Kyle and
Plaintiffs. The photograph of Kyle’s remains was taken at a
private, religious ceremony and without the knowledge or
consent of Plaintiffs.

38. The act of photographing Kyle’s remains and publishing
picture a picture of Kyle’s remains was an intrusion upon the
solitude and seclusion of Plaintiffs.

39. Kyle’s photograph was taken after Defendant Turnley
acknowledged Plaintiffs’ instructions and expressly agreed
and promised he would not photograph Kyle’s remains in his
casket. The published photograph depicts the remains of a
deceased human being and is emotional, sensational and
disturbing.

40. As a direct and proximate result of Defendants’ wrongful
conduct, Plaintiffs suffered actual damages, including pain
and suffering, attorneys’ fees and costs associated with this
action in excess of $75,000.00.

41. Defendants’ outrageous conduct was willful, wanton and
malicious, thereby entitling Plaintiffs to the recovery of
punitive damages against the Defendants.

53a

WHEREFORE, Plaintiffs pray that the Court enter
judgment in favor of Plaintiffs and against all Defendants, and
award Plaintiffs such actual damages and punitive damages as
the jury may award Plaintiffs; and award Plaintiffs’ their
costs, reasonable attorneys’ fees and interest, together with all
further relief this Court deeims just and proper.

THIRD CLAIM FOR RELIEF
VIOLATION OF 21 O.S. § 839.1

42. Plaintiff Johnny Davidson, as the Personal Repres*ntative
of the Estate of Kyle Adam Brinlee incorporates by reference
paragraphs | through 41 as if fully set forth herein.

43. The Defendants caused to be published a picture of Kyle’s
remains and his name for the purpose of advertising;
solicitation of patronage for the sale of Harper’s Magazine;
business; profits; and recognition. The photograph spread was
specifically referenced on the cover of the magazine as:

THE BEREAVED
Mourning the Dead, in America and Iraq
A photo Essay by Peter Turnley.

44. Prior to and subsequent to the publication and distribution
of the August 2004 edition, Defendants promoted the sale of
the photo essay “THE BEREAVED” and Harper’s Magazine
through several mediums, including but not limited to, radio,
internet, television, print and lecture.

45. In particular, Defendant Turnley appeared on the Leonard
Lopate radio show on August 5, 2004 and the MSNBC show
“Hardball with Chris Matthews” on September 7, 2004 to
promote “THE BEREAVED.” Defendant Turnley discussed

54a

the United States Military’s policy of not releasing any
photographs or permitting photographers to take and publish
photographs of the remains of United States’ soldiers killed in
the line of duty. In total disregard of this policy and Plaintiffs
rights and feelings, Defendants continued to promote the
“THE BEREAVED” and stated that a photograph of Kyle’s
remains was depicted in the photo essay.

46. Plaintiff was unaware that Defendant Turnley took open
casket photographs during Kyle’s funeral in direct
contravention of Plaintiffs instructions.

47. Plaintiff did not consent to the publication of a photograph
of Kyle’s remains. In fact, Plaintiff did not have the
opportunity to view the photograph and object before
publication.

48. Plaintiff, is entitled to bring this cause of action pursuant
to 21 O.S. § 839.2 and is further entitled to an award of
punitive damages pursuant to 21 O.S. § 839.2.

49. As a direct and proximate result of Defendants’ wrongful
conduct, Plaintiff suffered actual and exemplary damages,
including pain and suffering, attorneys’ fees and costs
associated with this action in excess of $75,000.00.

WHEREFORE, Plaintiff prays that the Court enter
judgment in favor of Plaintiff and against the Defendants, and
award Plaintiff actual damages and punitive damages as the
jury may award Plaintiff, including Plaintiffs costs,
reasonable attorneys’ fees and interest, together with all
further relief this Court deems just and proper.

5Sa
FOURTH CLAIM FOR RELIEF

FRAUDULENT/FALSE MISREPRESENTATION

50. Plaintiffs incorporate by reference paragraphs | through
49 as if fully set forth herein.

51. Prior to the funeral, the owner and director of Stephens
Memorial Chapel, Rick Stephens, received a telephone call
from Defendant Turnley. Defendant Turnley requested
permission to attend Kyle’s funeral. Mr. Stephens stated that
Defendant Turnley could attend the funeral and that the press
was permitted to photograph and/or videotape the
processional. Mr. Stephens unequivocally stated that Plaintiffs
would not allow photographs of Kyle Brinlee’s open casket
to be taken. Mr. Stephens also informed Defendant Turnley
that the family did not want the media harassing or making
contact with them during the funeral service.

52. Defendant Turniey acknowledged the Plaintiffs’
INStrUCLIONS aud CAprCcssiy agreed and oromised he would not
photograph Kyle’s open casket and that he would not make
contact with the Plaintiffs during the funeral service.

53. Defendant Turnley induced permission to attend the
funeral by falsely representing and promising that he would
adhere to Plaintiffs’ instructions.

54.Defendant Turniley’s fraudulent and __ false
misrepresentations were made to induce permission to attend
the funeral by fraudulently and falsely representing and
promising that he wouid adhere to Plaintiffs’ wishes.

55. Defendant Turnley attended Kyle’s funeral on May 19,
2004 in Pryor, Oklahoma and was again instructed that

S6a

photographs of Kyle’s remains in his open casket were not
permitted. Defendant Turnley was further instructed not to
contact Plaintiffs during the funeral service.

56. Defendant Turnley brought a camera to the funeral
service with the specific intent of photographing Kyle’s
remains and the private funeral service.

57.On May 19, 2004, Rick Stephens again spoke with
Defendant Turnley and again instructed him of the family’s
wishes.

58. Defendant Turnley agreed to follow the family’s
instructions.

59. The false misrepresentation by Defendant Turnley was
material because Plaintiffs would not have permitted him to
attend Kyle’s funeral if they had known that Defendant
Turnley planned to take photographs of Kyle’s remains during
his funeral service.

60.The Defendants obtained the photograph of Kyle’s
remains through a false representation.

61.As a direct and proximate result of the false
misrepresentations perpetrated upon Plaintiffs, Plaintiffs have
been proximately damaged in an amount that exceeds
$75,000.00 to be determined by a jury.

62. Defendants’ conduct was willful, wanton and malicious,
thereby entitling Plaintiffs to the recovery of punitive damages
against Defendants.

WHEREFORE, Plaintiffs pray that the Court enter
judgment in favor of Plaintiffs and against the Defendants,

57a

and award Plaintiffs such actual damages and punitive
damages as the jury may award Plaintiffs, and award
Plaintiffs their costs, reasonable attorneys’ fees and interest,
together with all further relief this Court deems just and

proper.
FIFTH CLAIM FOR RELIEF

CONSTRUCTIVE FRAUD, FRAUD AND DECEIT

63. Plaintiffs incorporate by reference paragraphs 1 through
62 as if fully set forth herein.

64. Prior to the funeral, the owner and director of Stephens
Memorial Chapel, Rick Stephens, received a telephone call
from Defendant Turniey. Defendant Turnley requested
permission to attend Kyle’s funeral. Mr. Stephens stated that
Defendant Turnley could attend the funeral and that the press
was permitted to photograph and/or videotape the
processional. Mr. Stephens unequivocally stated that Plaintiffs
would not allow photographs of Kyle Brinlee’s open casket
to be taken. Mr. Stephens also informed Defendant Turnley
that the family did not want the media harassing or making
contact with them during the funeral scrvicc.

65. Defendant Turnley acknowledged the Plaintiffs’
instructions and expressly agreed and promised he would not
photograph Kyle’s remains in his open casket.

66. Defendant Turnley induced permission to attend the
funeral by fraudulently representing and promising that he
would adhere to the Plaintiffs’ instructions.

67. Defendant Turnley’s fraudulent and _ deceitful
representations were made to induce permission to attend the

58a

funeral by fraudulently representing and promising that he
would adhere to Plaintiffs’ wishes.

68. Defendant Turnley attended Kyle’s funeral on May 19,
2004 in Pryor, Oklahoma and was again instructed that
photographs of Kyle’s remains in his open casket were not
permitted.

69. Defendant Turnley brought a camera to the funeral service
with the specific intent of photographing Kyle’s remains and
the private funeral service.

70. The fraudulent promises made by Defendant Turnley were
material because Plaintiffs would not have permitted him to
attend Kyle’s funeral if they had known that Defendants
planned to take and publish photographs of Kyle’s remains
during his funeral service.

71. The Defendants obtained the photograph of Kyle’s
remains through fraud.

72. The actions of Defendants constitute constructive fraud,
fraud and deceit and Plaintiffs have been directly harmed by
the fraudulent and deceitful actions of the Defendants.

73.The fraudulent actions of Defendants resulted in an
economic gain for the Defendants to the detriment of
Plaintiffs as to constitute constructive fraud.

74. As a direct and proximate result of the fraud perpetrated
upon Plaintiffs, Plaintiffs have been proximately damaged in
an amount to he determined by a jury.

59a

75. Defendants’ conduct was willful, wanton and malicious,
thereby entitling Plaintiffs to the recovery of punitive damages
against Defendants.

WHEREFORE, Plaintiffs pray that the Court enter
judgment in favor of Plaintiffs and against the Defendants,
and award Plaintiffs such actual damages and punitive
damages as the jury may award Plaintiffs and award Plaintiffs
their costs, reasonable attorneys’ fees and interest, together
with all further relief this Court deems just and proper.

SIXTH CLAIM FOR RELIEF
UNJUST ENRICHMENT

76. Plaintiffs incorporate by reference paragraphs 1 through
75 as if fully set forth herein.

77.The Defendants have realized financial gains, profits,
business, sales and recognition through fraud, deceit and

misrcpresentations perpetrated unon Plaintiffs.

78. Defendant Turnley directly violated the wishes of
Plaintiffs and Kyle’s family by taking photographs of Kyle’s
remains during his funeral service for the purpose of
publishing the photograph for the Defendants’ financial gain,
profit, business, sales and recognition.

79. Plaintiffs have been and continue to be directly harmed by
the Defendants’ fraudulent actions.

80. The Defendants have been unjustly enriched by realizing
financial gains, profits, business, sales and recognition
through fraud, deceit and misrepresentations they committed
against Plaintiffs.

60a

WHEREFORE, Plaintiffs pray that the Court enter
judgment in favor of Plaintiffs and against the Defendants,
and award Plaintiffs such actual damages and punitive
damages as the jury may award Plaintiffs and also award
Plaintiffs their costs, reasonable attorneys’ fees and interest,
together with all further relief this Court deems just and

proper.
SEVENTH CLAIM FOR RELIEF

NEGLIGENT HIRING, RETENTION
AND SUPERVISION

81. Plaintiffs incorporate by reference paragraphs 1 through
80 as if fully set forth herein.

82. Upon information and belief, Harper’s had or should have
had prior knowledge and/or was on notice of Defendant
Turnley’s propensity to obtain and publish controversial and
objectionable photographs.

83. Harper’s had a duty to the Plaintiffs to prevent the
reasonably foreseeable harm caused by their agent. Harper’s
breached their duty by retaining, supervising and permitting
Mr. Turnley to submit the photograph depicting Kyle’s
remains after Defendant Turnley promised not io do so.

84. Harper’s further breached their duty by failing to
determine whether Plaintiffs consented to the publication of
the photograph of Kyle’s remains. Harper's knew or should
have known that the United States Military had a policy of not
releasing any photographs or permitting photographers to take
and publish photographs of the remains of United States’
soldiers killed in the line of duty. In total disregard of not

6la

only this policy, but also Plaintiffs’ rights and feelings,
Harper’s published the photograph of Kyle’s remains.

85. Harper’ ‘s knew or should have known that photographs of
Kyle’s remains were not allowed and that Defendant Tumley
acknowledged Plaintiffs’ instructions and expressly agreed
and promised he would not photograph Kyle’s remains.

86. Harper’s knew or should have known that Defendant
Turnley induced permission to attend the funeral by falsely
representing and promising that he would adhere to the
Plaintiffs’ instructions.

87. Harper’s knew or should have known that Defendant
Turnley’s false misrepresentations were made to induce
permission to attend the funeral by fraudulently and falsely
representing and promising that he would adhere to the
Plaintiffs’ wishes and that Defendant Turnley was instructed
on multiple occasions that photographs of Kyle’s remains
were not allowed.

88. The photograph depicts the remains of a deceased human
being and is emotional, sensational and disturbing. Harper’s
published Kyle’s photograph so it would reap recognilion,
sales, business and profits.

89. As a direct and proximate result of Harper’s negligence,
Plaintiffs have been damaged in an amount to be determined
at trial.

90. Harper’s prior knowledge and notice of Mr. Turnley’s
practice of obtaining and publishing photographs that are so
extreme and outrageous as to go beyond all bounds of
decency, which are considered atrocious and utterly

62a

intolerable in this society, thereby entitles Plaintiffs to recover
punitive damages against the Defendants.

WHEREFORE, Plaintiffs pray that the Court enter
judgment in favor of Plaintiffs and against the Defendants,
and award Plaintiffs such actual damages and punitive
damages as the jury may award Plaintiffs, and also award
Plaintiffs their costs, reasonable attorneys’ fees and interest,
together with all further relief this Court deems just and
proper.

DAMAGES

91. Plaintiffs incorporate by reference paragraphs 1 through
90 as if fully set forth herein.

92. As to all Claims herein above, and as a proximate cause
of Defendants’ wrongful conduct, Plaintiffs have suffered
emotional distress, pain and suffering, and other damages. As
to all Claims herein above, Plaintiffs request all actual,
compensatory, and statutory damages, including attorneys’
fees, costs and prejudgment and post judgment interest.

93.That the wrongful acts of the Defendants were
characterized by such outrageous conduct, aggravation,
willfulness, wantonness, malice, gross negligence,
recklessness, Oppression, insult, or gross fraud as to entitle
Plaintiffs to an award of punitive damages.

94.The acts, omissions and other conduct of Defendants
herein were deliberate, willful, wanton and malicious and/or
were reckless and were made with complete disregard for the
welfare of Plaintiffs. Under the circumstances, the
Defendants’ conduct was so outrageous as to shock the
conscience.

63a

95. By reason of the outrageous, willful and wanton conduct
of Defendants as alleged herein, Plaintiffs are entitled to
recover punitive damages in an amount sufficient to punish
and deter the Defendants and others similarly situated from
committing the same wrongful acts. Plaintiffs thus request
punitive damages as to all Counts herein above.

PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Plaintiffs
demand Judgment in their favor and against the Defendants

jointly and severally as follows:

(a) for actual, statutory, and compensatory damages in an
amount to be determined by the jury;

(b) punitive damages in an amount to be determined by
the jury;

(c) costs of suit;
(d) reasonable attorneys’ fees and expert witness fees;
(e) pre-judgment and post-judgment interest; and

(f) such other and further relief as the Court deems just
and proper under the circumstances.

PLAINTIFFS DEMAND A TRIAL BY JURY.

Respectfully submitted,

LATHAM, STALL,
WAGNER, STEELE

64a
& LEHMAN, P.C.

/s/

Douglas Stall, OBA #13 117
Marcus N. Ratcliff, OBA # 19261
Allison Thompson, OBA # 17332
1800 S. Baltimore Ave.

Spirit Tower, Suite 500
Telephone 918.382.7523
Facsimile 918.382.7541

ATTORNEYS FOR THE PLAINTIFFS

65a

APPENDIX D

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

Case No. 05-CV-178-S

[Filed November 14, 2005}

ROBERT SHOWLER, JOHNNY DAVIDSON,
Individually and as Special Administrator
Of the Estate of Kyle Adam Brinlee,

Plaintiffs,

VS.

HARPER'S MAGAZINE FOUNDATION.
PETER Turnley Individually and in his
capacity as a Contributing Editor to
HARPER’S MAGAZINE,

Defendants.

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ANSWER OF DEFENDANTS HARPER’S MAGAZINE
FOUNDATION AND PETER TURNLEY TO
PLAINTIFFS’ SECOND AMENDED COMPLAINT

Defendants Harper’s Magazine Foundation ("Harper’s) and
Peter Turnley (“Turnley”), for their Answer to Plaintiffs’
Second Amended Complaint deny each and every allegation

66a

therein contained except as may hereinafter be admitted. By
way of their further Answer, Defendants allege and state as
follows:

JURISDICTION

1. Upon information and belief, Defendants admit
Plaintiff Robert Showler is a resident of Wagoner, Oklahoma.
Defendants admit that Wagoner, Oklahoma is situated in the
Eastern District of Oklahoma. Defendants deny the remaining
allegations in Paragraph 1 of the Second Amended Complaint.

‘3 Upon information and belief, Defendants admit
Plaintiff Johnny Davidson is a resident of Mayes County,
Oklahoma. Upon information and belief, Defendants admit
that Johnny Davidson has been appointed Personal
Representative of the Estate of Kyle Adam Brinlee, deceased.
Defendants deny the remaining allegations in Paragraph 2 of
the Second Amended Complaint.

3 Defendants admit the allegations in Paragraph 3 of
the Second Amended Complaint.

4. Defendants admit that, when not traveling in
connection with his profession, Turnley resides in New York,
New York. Defendants admit that he tock photographs within
the Eastern District of Oklahoma but denies that he solicits
business therein.

2. Defendants admit that a diversity of citizenship
exists between the Plaintiff and Defendant but denies that the
amount in controversy exceeds $75,000.

67a

FACTS

6. Upon information and belief, Defendants admit
that Robert Showler is the natural father of Kyle Brinlee
Showler (“Sgt. Brinlee”) and that Sgt. Brinlee’s natural
mother predeceased him.

+ Upon information and belief, Defendants admit
paragraph 7 of the Second Amended Complaint.

8. Upon information and belief, Defendants admit
paragraph 8 of the Second Amendec Complaint.

9. Defendants admit that Sgt. Brinlee’s funeral was
scheduled for May 19, 2004, and that Stephens Funeral Home
in Pryor, Oklahoma handled the arrangements. Defendants
admit that prior to the funeral Defendant Turnley spoke by
telephone with Rick Stephens who was identified as the owner
and director of Stephens Funeral Home. Before speaking with
Mr. Stephens, Defendant Turnley, by telephone, asked a
woman at Stephens Funeral Home how to contact Sgt.
Brinlee’s family in order to request permission to attend and
cover Sgt. Brinlee’s funeral. The woman with whom Turnley
spoke stated the funeral home was handling press
arrangements for the funeral and that it was not necessary for
Turnley to call Sgt. Brinlee’s family. Turnley specifically
denies ever being told that the press was to be limited in
when, what or how it photographed or videotaped the funeral.
Defendants admit that Stephens asked that no attempt be made
to interview Sgt. Brinlee’s family. The remaining allegations
in paragraph 9 are denied.

10. Defendants deny the allegations in Paragraph 10 of the
Second Amended Complaint.

68a

11. Defendants deny the allegations in Paragraph 11 of the
Second Amended Complaint.

12. Defendant Turnley admits attending Sgt. Brinlee’s
funeral on May 19, 2004 in Pryor, Oklahoma. Turnley admits
that the funeral service was held in the Pryor High School
auditorium due to the large number of persons attending and
that a section of the auditorium was reserved for the press.
Turnley admits Funeral Director Rick Stephens asked that he
not attempt to interview Sgt. Brinlee’s family during the
funeral service. Defendants specifically deny each and every
other allegation contained in paragraph 12 of the Second
Amended Complaint.

13. Turnley admits that he met with Rick Stephens one
time in person before the funeral service and that Stephens
asked that he not attempt to interview Sgt. Brinlee’s family
during the funeral service. Defendants deny the balance of the
allegations in paragraph 13 of the Second Amended
Complaint.

14. Turnley admits he agreed not to attempt to interview
Sgt. Brinlee’s family during the funeral service. Defendants
deny the balance of the allegations in paragraph 14 of the
Second Amended Complaint.

15. Upon information and belief, Defendants admit Sgt.
Brinlee’s family may not have known the subject of each or
any photograph taken buy Turnley before, during or after Sgt.
Brinlee’s funeral service.

16. Defendants admit that Harper’s publishes a monthly
magazine distributed throughout the United States and that in
August 2004 Harper’s published a photo essay which included
a photograph of the open casket at Sgt. Brinlee’s funeral.

69a

Defendants also admit that the same edition contained on the
front cover, among others, the following words: “THE
BEREAVED Mourning the Dead, in American and Iraq, A
Photo Essay by Peter Turnley.” The remaining allegations in
paragraph 16 are denied.

17. The allegations in paragraph 17 of the Second
Amended Complaint are admitted.

18. Defendants admit they promoted the sale of Harper's
Magazine and the new association of Peter Turnley with
Harper’s through several media. Defendants deny they
“promoted the sale of the photo essay ‘THE BEREAVED”’”.

19. Defendants admit they promoted the sale of Harper's
Magazine and the new association of Peter Turnley with
Harper’s through several media. Defendants deny they
“promoted the sale of the photo essay ‘THE BEREAVED’”.

20. Defendants admit Turnley appeared on the Leonard
Lupaic radio program on August 5, 2004 and an the MSNRC
program Hardball with Chris Matthews on September 7, 2004
to discuss THE BEREAVED. Defendants admit that Turnley
has discussed the former U.S. military policy of not releasing
any photographs or permitting photographers to take and
publish photographs of transport or arrival of caskets
containing the remains of U.S. soldiers killed in the line of
duty. Defendants deny that Turnley disregarded any pelicy of
the U.S. military in his coverage of the funeral of Sgt. Briniee
and further deny that the former U.S. military policy
referenced in paragraph 20 of the Plaintiffs’ Second Amended
Complaint had any application to the funeral of Sgt. Brinlee.
The remaining allegations contained in paragraph 21 are
denied.

70a

21.Upon information and belief, Plaintiff Showler
specifically sought out and purchased a copy of the August
2004 edition of Harper’s Magazine. Defendants have
insufficient information with which to admit or deny the
balance of the allegations in paragraph 21.

22. Upon information and belief, Plaintiff Davidson had
never seen the photograph of Sgt. Brinlee’s open casket until
his deposition in this litigation on September 27, 2005.
Defendants deny the balance of the allegations in paragraph
22 insofar as they are alleged to have given rise to claims in
this lawsuit.

23. Defendants admit that consistent with the promise
Defendant Turnley had made to Plaintiff Showler on the day
of the funeral, after having been told by Plaintiff Showler’s
wife to send the photographs, Turnley sent some of his
photographs taken in Pryor, Oklahoma in connection with
Sgt. Brinlee’s services to Plaintiff Showler. The remaining
allegations in paragraph 23 are denied.

FIRST CLAIM FOR RELIEF

INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS

24. Defendants incorporate by reference paragraph 1-23
as if fully set forth herein.

25. Defendants admit Turnley took photographs that
included Sgt. Brinlee’s casket, opened for viewing by the
more than 1,200 attendees at the funeral service but deny that
the service was in any way “private” and further deny each
and every other allegation contained in paragraph 25 of the
Second Amended Complaint.

Tila

26. Defendants admit that his photo essay called “THE
BEREAVED Mourning the Dead, in America and Iraq”
(“THE BEREAVED”) contained a photograph that included
Sgt. Brinlee’s open casket. Attached hereto as Exhibit A is a
copy of the said photo essay. The photograph of Sgt. Brinlee
is on page 47. Defendants admit that they encouraged the
public to read the photo essay in the August 2004 edition of
Harpers Magazine. Defendant Turnley admits he was paid by
Harper’s for all the photographs comprising THE
BEREAVED. Each and every other allegation in paragraph
26 of the Second Amended Complaint is denied.

27. Defendants deny the allegations in paragraph 27 of the
Second Amended Complaint.

28. Defendants deny that any policy of “The United States
Military” prohibited, controlled, applied or related to Sgt.
Brinlee’s funeral or the coverage of said funeral and
photographs taken by Turnley or any other member of the
press. Defendants also deny the balance of the allegations in
paragraph 28 of the Second Amended Complaint.

29. The Defendants admit that the Plaintiffs have mourned
the death of Sgt. Brinlee and deny the remaining allegations
in paragraph 29 of the Second Amended Complaint.

30. The Defendants deny the allegations in paragraph 30
of the Second Amended Complaint.

31. Defendants deny the allegations in paragraph 31 of the
Second Amended Complaint.

32. Defendants deny the allegations in paragraph 32 of the
Second Amended Complaint.

72a

SECOND CLAIM FOR RELIEF
INVASION OF PRIVACY

33. Defendants incorporate by reference paragraph 1-32
as if fully set forth herein.

34. Defendants deny the allegations in paragraph 34 of the
Second Amended Complaint.

35. Defendants deny the allegations in paragraph 35 of the
Second Amended Complaint. 7

36. Defendants admit that funeral services can be private
religious ceremonies and rites of passage. However,
Defendants specifically deny that Sgt. Brinlee’s funeral was
a “private” ceremony. The remaining allegations of paragraph
36 of the Second Amended Complaint are denied.

37. Defendants deny the allegations in paragraph 37 of the
Second Amended Complaint.

38. Defendants deny the allegations in paragraph 38 of the
Second Amended Complaint.

39. Defendants deny the allegations in paragraph 39 of the
Second Amended Complaint.

40. Defendants deny the allegations in paragraph 40 of the
Second Amended Complaint.

41. Defendants deny the allegations in paragraph 41 of the
Second Amended Complaint.

73a
THIRD CLAIM FOR RELIEF

VIOLATION OF 21 O.S. § 839.1

42. Defendants incorporate by reference paragraphs 1-41
as if fully set forth herein.

43. Except as hereinbefore admitted, the allegations in
paragraph 43 of the Second Amended Complaint are denied.

44. Defendants admit they promoted the sale of Harper’s
Magazine and the new association of Peter Turnley with
Harper’s through several media. Defendants deny they
“promoted the sale of the photo essay ‘THE BEREAVED’”.

45. Except as hereinbefore admitted, Defendants deny the
allegations in paragraph 45 of the Second Amended
Complaint.

46. Defendants deny Turnley took any photographs during
Set. Rrinlee’s funeral in direct contravention of Plaintiffs’
instructions.

47. Defendants deny the allegations in paragraph 47 of the
Second Amended Complaint.

48. Defendants deny the allegations in paragraph 48 of the
Second Amended Complaint.

49. Defendants deny the allegations in paragraph 49 of the
Second Amended Complaint.

74a

FOURTH CLAIM FOR RELIEF
FRAUDULENT/FALSE MISREPRESENTATION

50. Defendants incorporate by reference paragraphs 1-49
as if fully set forth herein.

51. Except as hereinbefore admitted, Defendants deny the
allegations in paragraph 51 of the Second Amended
Complaint.

52. Defendant Turnley admits he agreed not to make
contact with the Sgt. Brinlee’s family during the funeral
service and did not make any such contact. Defendants deny
the balance of the allegations in paragraph 52 of the Secoud
Amended Complaint.

53. Defendants deny the allegations in paragraph 53 of the
Second Amended Complaint.

54. Defendants deny the allegations in paragraph 54 of the
Second Amended Complaint.

55. Except as hereinbefore admitted, Defendants deny the
allegations in paragraph 55 of the Second Amended
Complaint.

56. Defendants admit that Defendant Turnley came to Sgt.
Brinlee’s funeral service with the specific intent of
photographing matters related to the funeral that were open to
the public. Defendants deny the balance of the allegations in
paragraph 56 of Plaintiffs’ Second Amended Complaint.

57. Defendants admit that Turnley and Stephens spoke on
May 19, 2004 prior to the start of Sgt. Brinlee’s funeral.

75a

Defendants deny the balance of the allegations in paragraph
57 of the Second Amended Complaint.

58. Defendant Turnley agreed not to contact Sgt. Brinlee’s
family during the funeral. Defendants deny the balance of the
allegations in paragraph 58 of the Second Amended
Complaint.

59. Defendants deny that Defendant Turnley made any
“false misrepresentation” [sic] to or regarding Sgt. Brinlee’s
family and further deny the balance of the allegations in
paragraph 59 of the Second Amended Complaint.

60. Defendants deny the allegations in paragraph 60 of the
Second Amended Complaint.

61. Defendants deny the allegations in paragraph 61 of the
Second Amended Complaint.

62. Defendants deny the allegations in paragraph 62 of the
Second Ameudeu Complaint.

FIFTH CLAIM FOR RELIEF
CONSTRUCTIVE FRAUD, FRAUD AND DECEIT

63. Defendants incorporate by reference paragraphs 1-62
as if fully set forth herein.

64. Except as hereinbefore admitted, Defendants deny the
allegations in paragraph 64 of the Second Amended
Complaint.

65. Defendants deny the allegations in paragraph 65 of the
Second Amended Complaint.

76a

66. Defendants deny the allegations in paragraph 66 of the
Second Amended Complaint.

67. Defendants deny the allegations in paragraph 67 of the
Second Amended Complaint.

68. Except as hereinbefore admitted, Defendants deny the
allegations in paragraph 68 of the Second Amended
Complaint.

69. Except as hereinbefore admitted, Defendants deny the
allegations in paragraph 69 of the Second Amended
Complaint.

70. Defendants deny that Defendant Turnley made any
“fraudulent promises” to or regarding Sgt. Brinlee’s family
and further deny the balance of the allegations in paragraph
70 of the Second Amended Complaint.

71. Defendants deny the allegations in paragraph 71 of the
Second Amended Complaint.

72. Defendants deny the allegations in paragraph n2 of the
Second Amended Complaint.

73. Defendants deny the allegations in paragraph 73 of the
Second Amended Complaint.

74. Defendants deny the allegations in paragraph 74 of the
Second Amended Complaint.

75. Defendants deny the allegations in paragraph 75 of the
Second AmendedComplaint.

T7Ta

SIXTH CLAIM FOR RELIEF
UNJUST ENRICHMENT

76. Defendants incorporate by reference paragraphs 1-75
as if fully set forth herein.

77.Complaint Defendants deny the allegations in
paragraph 77 of the Second Amended Complaint.

78. Defendants deny the allegations in paragraph 78 of the
Second Amended Complaint.

79. Defendants deny the allegations in paragraph 79 of the
Second Amended Complaint.

80. Defendants deny the allegations in paragraph 80 of the
Second Amended Complaint.

SEVENTH CLAIM FOR RELIEF AGAINST
HARPER’S NEGLIGENT HIRING,
RETENTION AND SUPERVISION

81. Defendants incorporate by reference paragraphs i-80
as if fully set forth herein.

82. Defendants deny the allegations in paragraph 82 of the
Second Amended Complaint.

83. Defendants deny the allegations in paragraph 83 of the
Second Amended Complaint.

84. Defendants deny the allegations in paragraph 84 of the
Second Amended Complaint.

78a

85. Defendants deny the allegations in paragraph 85 of the
Second Amended Complaint.

86. Defendants deny the allegations in paragraph 86 of the
Second Amended Complaint.

87. Defendants deny the allegations in paragraph 87 of the
Second Amended Complaint.

88. Defendants deny the allegations in paragraph 88 of the
Second Amended Complaint.

89. Defendants deny the allegations in paragraph 89 of the
Second Amended Complaint.

90. Defendants deny the allegations in paragraph 90 of the
Second Amended Complaint.

DAMAGES

91. Defendants incorporate by reference paragraphs 1-90
as if fully set forth herein.

92. Defendants deny the allegations in paragraph 92 of the
Second Amended Complaint.

93. Defendants deny the allegations in paragraph 93 of the
Second Amended Complaint.

94. Defendants deny the allegations in paragraph 94 of the
Second Amended Complaint.

95. Defendants deny the allegations in paragraph 95 of the
Second Amended Complaint.

79a

AFFIRMATIVE DEFENSES

1. Privilege - Under the First and Fourteenth
Amendments to the United States Constitution, the actions
complained of in the Second Amended Complaint are
privileged and hence not actionable as to Defendants Harper’s
and Turnley.

2. Waiver - By conducting a public funeral at a public
high school attended by Oklahoma’s Governor, other
dignitaries and members of the public and by allowing a place
for the press, the Plaintiffs waived any claim that the funeral
was “private” and hence even if any of the allegations of the
Second Amended Complaint are accurate, the Plaintiffs have
waived any claim to pursue their theories of relief.

3. Estoppel - Because the Plaintiffs were clearly
aware that Defendant Turnley, as a member of the press, was
permitted to attend the funeral and take photographs, they are
estopped from pursuing any cause of action against
Deteidaiits iiarpcr’s and Turnicy.

WHEREFORE, PREMISES CONSIDERED, Defendants
Harper’s Magazine Foundation and Peter Turnley pray that
they be awarded judgment on Plaintiffs’ Second Amended
Complaint, for their costs of this action including a reasonable
attorneys fee and for such other and further relief as the Court
may deem proper.

80a

Respectfully submitted,

/s/

S. Douglas Dodd, OBA No. 2389
Doerner, Saunders, Daniel &
Anderson, L.L.P.

320 South Boston Avenue Suite 500
Tulsa, OK 74103-3725

(918) 582-1211

(918); 591-5362 (Fax)

E-mail: ddodd@dsda.com

Michael Minnis, OBA No. 6251
Doerner Saunders, Daniel &
Anderson, L.L.P.

One Leadership Square, Suite 501
OKLAHOMA CITY, OK
73102-7112

(405) 3 19-3500

(405) 3 19-3509 (Fax)

E-mail: mminnis@dsda.com

Attorneys for Defendants Peter
Turnley and Harper’s Magazine
Foundation

8la

APPENDIX E

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

Case No. 05-CV-178-S

[Filed November 14, 2005]

ROBERT SHOWLER, JOHNNY DAVIDSON,
Individually and as Special Administrator
Of the Estate of Kyle Adam Brinlee,

Plaintiffs,

VS.

HARPER’S MAGAZINE FOUNDATION.
PETER Turnley Individually and in his
capacity as a Contributing Editor to
HARPER’S MAGAZINE,

Defendants.

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MOTION FOR SUMMARY JUDGMENT ON
THE SECOND AMENDED COMPLAINT

Pursuant to the Federal Rules of Civil Procedure 56,
Defendants Harper’s Magazine Foundation and Peter Turnley
move for summary judgment on the Second Amended
Complaint filed herein on November 1, 2005.

82a

Defendants previously filed for Summary Judgment on
October 31, the last day to file dispositive motions. This
original summary judgment motion has been overtaken by
subsequent events. On October 31, the Court granted
Plaintiffs’ motion to file a second amended complaint and
extended the Dispositive Motion deadline to November 10.
Consistent with the October 31° Order, Plaintiffs filed a
Second Amended Complaint November 1. The Second
Amended Complaint, inter alia, omitted a negligence claim
and, in response to a Rule 11 safe harbor letter, 22 false
factual allegations contained in the First Amended Complaint.
Thus, this present motion for summary judgment substitutes
for the October 31 summary judgment motion and addresses
Plaintiffs’ allegations and claims as now being asserted.

Consistent with EDOK LR 7.1(B), the Defendants
separately submit a brief in support of their motion.

Respectfully submitted,

/s/

Doerner, Saunders, Daniel &
Anderson, L.L.P.

320 South Boston Avenue Suite 500
Tulsa, OK 74103-3725

(918) 582-121 |

(918); 591-5362 (Fax)

E-mail: sddodd@dsda.com

Michael Minnis, OBA No. 6251
David McCullough, OBA No. 10898
DOERNER SAUNDERS, DANIEL &
ANDERSON, L.L.P.

One Leadership Square, Suite 501
OKLAHOMA CITY, OK 73 102-7112

83a

(405) 319-3500
(405) 319-3509 (Fax)
E-mail: mminnis@dsda.com

Attorneys for Defendants Peter Turnley
and Harper's Magazine Foundation

CERTIFICATE OF MAILING

The undersigned hereby certificates that a true and correct
copy of the above and foregoing document was mailed
November 10, 2005, with postage prepaid to:

Douglas Stall, Esq.
Marcus Ratcliff, Esq.

Latham, Stall, Wagner, Steele & Lehman, P.C.
1800 S. Baltimore, Ste. 500
Tulsa, OK 74119

/s/
S. Douglas Dodd

84a

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

Case No. 05-CV-178-S

[Filed November 14, 2005]

ROBERT SHOWLER, JOHNNY DAVIDSON,
Individually and as Special Administrator
of the Estate of Kyle Adam Brinlee,

Plaintiffs,

VS.

HARPER’S MAGAZINE FOUNDATION,
PETER Turnley Individually and in his
capacity as a Contributing Editor to
HARPER’S MAGAZINE,

Defendants.

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BRIEF IN SUPPORT OF DEPENDANTS’
MOTION FOR SUMMARY JUDGMENT
ON THE SECOND AMENDED COMPLAINT

S. Douglas Dodd, OBA No. 2389
Raymond H. Tipton, II], OBA No. 20871
Doerner, Saunders, Daniel &

Anderson, L.L.P.

320 South Boston Avenue Suite 500
Tulsa, OK 74103-3725

(918) 582-1211

(918); 591-5362 (Fax)

E-mail: sddodd@dsda.com

85a

Michael Minnis, OBA No. 625 1
Doerner, Saunders, Daniel &
Anderson, L.L.P.

One Leadership Square, Suite 501
Oklahoma City, OK 73102-7112
(405) 319-3500

(405) 319-3509 (Fax)

E-mail: mm

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1119%3A2. Public record. Not legal advice.