Posted On: February 22, 2008 by Allen, Flatt, Ballidis & Leslie

GORY PHOTOS POSTED BY CALIFORNIA CHP ARE SUBJECT OF PERSONAL PRIVACY LAWSUIT

Imagine the worst. Your child has just died in an automobile accident. But in the aftermath you now discover that your child’s gory accident photos are now scattered all over the internet. Is this a matter of protecting the privacy of the family or free speech?

Orange County judge, Steven J. Perk has just ruled last week to allow this case to proceed. He feels that the family does has a basis to sue the California Highway Patrol’s dispatcher. There is no way to be certain what will happen in this case, but it will certainly be interesting to watch which side prevails. It will unquestionably impact how employers deal with security issues and their employees in our high-tech world. So how did his all begin and what are the facts?

A young, spirited 18 year old young woman named Nicole “Nikki” Catsouras from Ladera Ranch, California, an upscale suburb in Southern Orange County. She had recently graduated in June from Tesoro High School and had a promising future. For unknown reasons on Halloween morning, 2006, she stole her dad’s Porsche and went for a wild ride on the 241 toll road. Witnesses said that they saw her driving in excess of 100 mph when she clipped a Honda she was trying to pass on the right. She lost control of her car and cut across the center meridian, then across several lanes of traffic and then crashed into a tollbooth. The driver of the Honda was treated for minor injuries but Nicole died instantly. In fact, she was decapitated by the force of the impact.

The accident is still under investigation by the CHP, but high speed and small traces of cocaine that were found in her system will probably contribute to the cause of the accident. After the accident, investigators obviously took photos to document the accident. This is where difference of opinion begins.

Thomas O’Donnell, an 18 year veteran dispatcher of the CHP, was the officer on duty that transmitted these photos to his home computer. He said that he needed them to work from home. He subsequently sent them to his friend, Aaron Reich another CHP dispatcher. In total he sent the photos to four friends. After the CHP held its own internal investigation, it took responsibility for the photo leak but denies any legal responsibility. Reich is no longer with the CHP and has been dropped from the lawsuit brought by the family. The CHP’s position on the matter remains that accident-scene photos are to be used only for investigative purposes.
Within weeks of the accident, the gruesome photos were transmitted to over 1,600 websites and cyber bullies had begun taunting the Catsouras family with taunting emails accompanied by the horrible pictures.

The dispatcher’s attorney defends him as having protection under the constitutional rights to free speech. But does he have a heightened duty of care with photos of a dead girl?
The Catsouras family has sued the CHP and the dispatcher for 20 million for negligence, violation of privacy and emotional distress, among other things. Are the family privacy rights violated? Should these photos be used for educational purposes to warn teen drivers of the danger of excessive speed?

Only in the jury trial will we have these questions answered. But the one thing both sides do agree on is that what has transpired is horrific. No trial date has been set.