Court allows privacy claims over relatives' autopsy photos

WASHINGTON–The state Supreme Court in Olympia for the first time explicitly recognized the existence of a tort cause of action for invasion of privacy in early September, in an appeal brought by relatives of decedents whose autopsy photographs were allegedly misappropriated and displayed by employees of a county medical examiner’s office.

Plaintiffs claimed that employees of the medical examiner’s office kept scrapbooks of autopsy photographs, showing them at cocktail parties, displaying them to coworkers and using them in road safety classes without permission from decedents’ families. Among the plaintiffs in the case were the niece of former governor Dixie Lee Ray, the widow and daughters of former Tacoma mayor Jack Hyde, the mother of a woman who died of a drug overdose and the widow of a man killed in a power tool accident.

The court held that “the immediate relatives of a decedent have a protectable privacy interest in the autopsy records of the decedent,” adding that the privacy interest was grounded in maintaining the dignity of the deceased.

“So that no further confusion exists, we explicitly hold that a common law right of privacy exists in this state and that individuals may bring a cause of action for invasion of that right,” the court wrote. This decision overruled a previous court of appeals decision that declined to recognize the tort.

However, the court declined to expand this common law interest and create a new state constitutional right. Writing for the court, Justice Charles Johnson noted that the plaintiffs had not established why a constitutional cause of action would be more appropriate than a common law claim.

The plaintiffs’ suits were brought independent of each other in superior court in Seattle and were dismissed. The petitions for review were consolidated by the Supreme Court and the appeals proceeded as one case.

Plaintiffs argued that the county was liable for common law invasion of privacy. The county asserted that no common law right of privacy existed in Washington. The court rejected the county’s argument, acknowledged the existence of a common law privacy right covering publication of private facts.

The court also rejected the county’s arguments that a privacy right is a personal right that may not be asserted by a third party, such as a surviving relative. The court held that the county’s argument “flies in the face of our previous cases, legislation and memoranda from the County itself.”

The court noted that Washington law affords decedents’ family members a privacy right in records regarding their deceased relatives. “We fail to see how autopsy photographs of the Plaintiffs’ deceased relatives do not constitute intimate details of the Plaintiffs’ lives or are not facts Plaintiffs do not wish exposed before the public gaze.”

The court upheld the lower court’s dismissal of the plaintiffs’ claims for the torts of outrage and negligent intentional infliction of emotional distress, holding that plaintiffs who were not physically present at the time the alleged torts took place could not maintain either claim. (Reid v. Pierce County; Counsel for amicus curiae, American Civil Liberties Union; Jeffrey Needle, Seattle)